Exhibit 10.1
EXECUTION COPY
U.S. $500,000,000
364-DAY CREDIT AGREEMENT
Dated as of May 24, 2004
Among
OMNICOM FINANCE INC.
OMNICOM CAPITAL INC.
and
OMNICOM FINANCE PLC
as Borrowers
------------
OMNICOM GROUP INC.
as Guarantor
------------
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
------------------
and
CITIGROUP GLOBAL MARKETS INC.
and
X.X. XXXXXX SECURITIES INC.
as Lead Arrangers and Book Managers
-----------------------------------
ABN AMRO BANK N.V.
as Syndication Agent
--------------------
JPMORGAN CHASE BANK
and
HSBC BANK USA
as Documentation Agents
-----------------------
and
CITIBANK, N.A.
as Administrative Agent
-----------------------
TABLE OF CONTENTS
ARTICLE I
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 10
SECTION 1.03. Accounting Terms 10
ARTICLE II
SECTION 2.01. The Advances 10
SECTION 2.02. Making the Advances 10
SECTION 2.03. Fees 11
SECTION 2.04. Termination or Reduction of the Commitments 11
SECTION 2.05. Repayment of Advances 12
SECTION 2.06. Interest on Advances 12
SECTION 2.07. Interest Rate Determination 12
SECTION 2.08. Optional Conversion of Advances 13
SECTION 2.09. Prepayments of Advances 13
SECTION 2.10. Increased Costs 14
SECTION 2.11. Illegality 14
SECTION 2.12. Payments and Computations 15
SECTION 2.13. Taxes 15
SECTION 2.14. Sharing of Payments, Etc. 18
SECTION 2.15. Evidence of Debt 18
SECTION 2.16. Use of Proceeds 19
SECTION 2.17. Increase in the Aggregate Commitments 19
SECTION 2.18. Extension of Termination Date 20
i
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness
of Section 2.01 21
SECTION 3.02. Conditions Precedent to Each Borrowing,
Commitment Increase and Extension Date. 23
SECTION 3.03. Determinations Under Section 3.01 23
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Guarantor 23
ARTICLE V
SECTION 5.01. Affirmative Covenants 25
SECTION 5.02. Negative Covenants 27
SECTION 5.03. Financial Covenants 28
ARTICLE VI
SECTION 6.01. Events of Default 29
ARTICLE VII
SECTION 7.01. Guaranty 30
SECTION 7.02. Guaranty Absolute 31
SECTION 7.03. Waivers and Acknowledgements 32
SECTION 7.04. Subrogation 32
SECTION 7.05. Subordination 33
SECTION 7.06. Continuing Guaranty; Assignments 33
ARTICLE VIII
SECTION 8.01. Authorization and Action 33
SECTION 8.02. Agent's Reliance, Etc. 34
SECTION 8.03. Citibank and Affiliates 34
SECTION 8.04. Lender Credit Decision 34
ii
SECTION 8.05. Indemnification 34
SECTION 8.06. Successor Agent 35
SECTION 8.07. Other Agents. 35
ARTICLE IX
SECTION 9.01. Amendments, Etc. 35
SECTION 9.02. Notices, Etc. 35
SECTION 9.03. No Waiver; Remedies 36
SECTION 9.04. Costs and Expenses 36
SECTION 9.05. Right of Set-off 37
SECTION 9.06. Binding Effect 37
SECTION 9.07. Assignments and Participations 38
SECTION 9.08. Confidentiality 39
SECTION 9.09. Governing Law 39
SECTION 9.10. Execution in Counterparts 39
SECTION 9.11. Jurisdiction, Etc. 40
SECTION 9.12. Patriot Act 40
SECTION 9.13. Waiver of Jury Trial 41
iii
Schedules
---------
Schedule I - List of Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
Schedule 5.02(a) - Existing Liens
Schedule 5.02(d) - Existing Debt
Exhibits
--------
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Opinion of New York Counsel for the Loan Parties
Exhibit D-2 - Form of Opinion of English Counsel for OFP
iv
364-DAY CREDIT AGREEMENT
Dated as of May 24, 2004
OMNICOM FINANCE INC., a Delaware corporation ("OFI"), OMNICOM
CAPITAL INC., a Connecticut corporation ("OCI"), and OMNICOM FINANCE PLC, a
corporation organized under the laws of England and Wales ("OFP"; OFI, OCI and
OFP are each a "Borrower" and collectively, the "Borrowers"), OMNICOM GROUP
INC., a New York corporation (the "Guarantor"), the banks, financial
institutions and other institutional lenders (the "Initial Lenders") listed on
the signature pages hereof, CITIGROUP GLOBAL MARKETS INC. and X.X. XXXXXX
SECURITIES INC., as lead arrangers and book managers, ABN AMRO BANK N.V., as
syndication agent, JPMORGAN CHASE BANK and HSBC BANK USA, as documentation
agents, and CITIBANK, N.A. ("Citibank"), as administrative agent (the "Agent")
for the Lenders (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" means an advance by a Lender to a Borrower as part of a
Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance
(each of which shall be a "Type" of Advance).
"Affiliate" means, as to any Person, any other Person (other than an
individual) that, directly or indirectly, controls, is controlled by or is
under common control with such Person; provided that, for purposes of
Section 5.01(h), an Affiliate of a Borrower shall include any Person that
(x) is a director or officer of such Person or (y) has the possession,
direct or indirect, of the power to vote 5% or more of the Voting Stock of
such Person. A Person shall be deemed to control another Person if such
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of Voting Stock, by contract or otherwise.
"Agent's Account" means the account of the Agent maintained by the
Agent at Citibank at its office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Account No. 00000000, Attention: Bank Loan Syndications.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance.
"Applicable Margin" means (a) for Base Rate Advances, 0% per annum
and (b) for Eurodollar Rate Advances, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on such
date as set forth below:
-------------------------------------------------------------------------------
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Xxxxx'x Eurodollar Rate Advances Eurodollar Rate Advances
Prior to the Term Loan On and After the Term Loan
Conversion Date Conversion Date
-------------------------------------------------------------------------------
Xxxxx 0
A+ or A1 or above 0.165% 0.625%
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Xxxxx'x Eurodollar Rate Advances Eurodollar Rate Advances
Prior to the Term Loan On and After the Term Loan
Conversion Date Conversion Date
-------------------------------------------------------------------------------
Level 2
A or A2 0.275% 0.750%
-------------------------------------------------------------------------------
Level 3
A- or A3 0.390% 0.875%
-------------------------------------------------------------------------------
Xxxxx 0
BBB+ or Baa1 0.500% 1.000%
-------------------------------------------------------------------------------
Level 5
BBB or Baa2 0.725% 1.250%
-------------------------------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.800% 1.500%
-------------------------------------------------------------------------------
"Applicable Percentage" means, as of any date prior to the Term Loan
Conversion Date, a percentage per annum determined by reference to the
Public Debt Rating in effect on such date as set forth below:
--------------------------------------------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Percentage
--------------------------------------------------------------
Xxxxx 0
A+ or A1 or above 0.085%
--------------------------------------------------------------
Level 2
A or A2 0.100%
--------------------------------------------------------------
Level 3
A- or A3 0.110%
--------------------------------------------------------------
Xxxxx 0
BBB+ or Baa1 0.125%
--------------------------------------------------------------
Level 5
BBB or Baa2 0.150%
--------------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.200%
--------------------------------------------------------------
"Applicable Utilization Fee" means, as of any date prior to the Term
Loan Conversion Date that the aggregate Advances exceed 50% of the
aggregate Commitments, a percentage per annum determined by reference to
the Public Debt Rating in effect on such date as set forth below:
--------------------------------------------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Utilization Fee
--------------------------------------------------------------
Xxxxx 0
A+ or A1 or above 0.125%
--------------------------------------------------------------
Level 2
A or A2 0.125%
--------------------------------------------------------------
Level 3
A- or A3 0.125%
--------------------------------------------------------------
Xxxxx 0
BBB+ or Baa1 0.125%
--------------------------------------------------------------
Level 5
BBB or Baa2 0.125%
--------------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.250%
--------------------------------------------------------------
2
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section 2.17(d).
"Assumption Agreement" has the meaning specified in Section
2.17(d)(ii).
"Bankruptcy Law" means Title 11, U.S. Code, or any similar foreign,
federal or state law for the relief of debtors.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is
no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1%
per annum, plus (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates
in the United States for three-month certificates of deposit of
major United States money market banks, such three-week moving
average (adjusted to the basis of a year of 360 days) being
determined weekly on each Monday (or, if such day is not a Business
Day, on the next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of deposit
dealers of recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily percentages
specified during such three-week period by the Board of Governors of
the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement) for
Citibank with respect to liabilities consisting of or including
(among other liabilities) three-month U.S. dollar non-personal time
deposits in the United States, plus (iii) the average during such
three-week period of the annual assessment rates estimated by
Citibank for determining the then current annual assessment payable
by Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring U.S. dollar deposits of Citibank in the
United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as provided
in Section 2.06(a)(i).
"Borrowing" means (a) with respect to the making of Advances, a
borrowing consisting of simultaneous Advances of the same Type made by
each of the Lenders pursuant to Section 2.01; and (b) in other contexts
(i) that portion of the Advances comprised of all outstanding Base Rate
Advances and (ii) that portion of Advances converted into, or continued
as, Eurodollar Rate Advances having the same Interest Period.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on which
dealings are carried on in the London interbank market.
"Commitment" means as to any Lender (a) the amount set forth
opposite such Lender's name on the signature pages hereof, (b) if such
Lender has become a Lender hereunder pursuant to an Assumption
3
Agreement, the amount set forth in such Assumption Agreement or (c) if
such Lender has entered into any Assignment and Acceptance, the amount set
forth for such Lender in the Register maintained by the Agent pursuant to
Section 9.07(d), as such amount may be reduced pursuant to Section 2.04 or
increased pursuant to Section 2.17.
"Commitment Date" has the meaning specified in Section 2.17(b).
"Commitment Increase" has the meaning specified in Section 2.17(a).
"Confidential Information" means information that a Loan Party
furnishes to the Agent or any Lender in a writing designated as
confidential, but does not include any such information that is or becomes
generally available to the public or that is or becomes available to the
Agent or such Lender from a source other than a Loan Party.
"Consenting Lender" has the meaning specified in Section 2.18(b).
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Convert", "Conversion" and "Converted" each refers to a conversion
of Advances of one Type into Advances of the other Type pursuant to
Section 2.07 or 2.08.
"Debt" of any Person means, 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 earn-out payment obligations of such Person in connection with the
purchase of property or services to the extent they are still contingent),
(c) all obligations of such Person evidenced by notes, bonds, debentures
or other similar instruments, (d) all obligations of such Person created
or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even though the rights
and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
obligations of such Person as lessee under leases that have been or should
be, in accordance with GAAP, recorded as capital leases, (f) all
obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (g) all
obligations of such Person in respect of Hedge Agreements, (h) all Debt of
others referred to in clauses (a) through (g) above or clause (i) below
and other payment obligations guaranteed directly or indirectly in any
manner by such Person, or in effect guaranteed directly or indirectly by
such Person through an agreement (1) to pay or purchase such Debt or to
advance or supply funds for the payment or purchase of such Debt, (2) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or
sell services, primarily for the purpose of enabling the debtor to make
payment of such Debt or to assure the holder of such Debt against loss,
(3) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or (4)
otherwise to assure a creditor against loss, and (i) all Debt referred to
in clauses (a) through (h) above secured by (or for which the holder of
such Debt has an existing right, contingent or otherwise, to be secured
by) any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Debt.
"Debt for Borrowed Money" of any Person means all items that, in
accordance with GAAP, would be classified as indebtedness on a
Consolidated balance sheet of such Person.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assumption Agreement
4
or the Assignment and Acceptance pursuant to which it became a Lender, or
such other office of such Lender as such Lender may from time to time
specify to the Borrowers and the Agent.
"EBITDA" means, for any period, net income (or net loss) plus the
sum of (a) net interest expense, (b) income tax expense, (c) depreciation
expense and (d) amortization expense, in each case determined in
accordance with GAAP for such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any assignment
is effected in accordance with Section 9.07, the Guarantor, such approval
not to be unreasonably withheld or delayed; provided, however, that
neither the Guarantor nor an Affiliate of the Guarantor shall qualify as
an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of liability
or potential liability, investigation, proceeding, consent order or
consent agreement relating in any way to any Environmental Law,
Environmental Permit or hazardous materials or arising from alleged injury
or threat of injury to health, safety or the environment, including,
without limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or any third
party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree
or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural
resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or
discharge of hazardous materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Guarantor's controlled group, or under common
control with the Guarantor, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are
met with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30 days;
(b) the application for a minimum funding waiver with respect to a Plan;
(c) the provision by the administrator of any Plan of a notice of intent
to terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including
any such notice with respect to a plan amendment referred to in Section
4041(e) of ERISA); (d) the cessation of operations at a facility of the
Guarantor or any ERISA Affiliate in the circumstances described in Section
4062(e) of ERISA; (e) the withdrawal by the Guarantor or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for which it
was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f)
the conditions for the imposition of a lien under Section 302(f) of ERISA
shall have been met with respect to any Plan; (g) the adoption of an
amendment to
5
a Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of
any event or condition described in Section 4042 of ERISA that constitutes
grounds for the termination of, or the appointment of a trustee to
administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement or
the Assignment and Acceptance pursuant to which it became a Lender (or, if
no such office is specified, its Domestic Lending Office), or such other
office of such Lender as such Lender may from time to time specify to the
Borrowers and the Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the rate per
annum (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum) appearing on Telerate Markets Page 3750 (or any successor page) as
the London interbank offered rate for deposits in U.S. dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest
Period or, if for any reason such rate is not available (but subject to
the provisions of Section 2.07), the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not
such a multiple) of the rate per annum at which deposits in U.S. dollars
are offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to such Reference Bank's
Eurodollar Rate Advance comprising part of such Borrowing to be
outstanding during such Interest Period and for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage for such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate
on Eurodollar Rate Advances is determined) having a term equal to such
Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Extension Date" has the meaning specified in Section 2.18(b).
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing selected
by it.
6
"GAAP" has the meaning specified in Section 1.03.
"Guaranteed Obligations" has the meaning specified in Section 7.01.
"Guaranty" means the provisions of Article VII.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Increase Date" has the meaning specified in Section 2.17(a).
"Increasing Lender" has the meaning specified in Section 2.17(b).
"Information Memorandum" means the information memorandum dated
April 15, 2004 used by the Agent in connection with the syndication of the
Commitments.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance and ending on the last day of
the period selected by the applicable Borrower pursuant to the provisions
below and, thereafter, with respect to Eurodollar Rate Advances, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by such
Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, and subject to
clause (c) of this definition, nine months, as the applicable Borrower
may, upon notice received by the Agent not later than 11:00 A.M. (New York
City time) on the third Business Day prior to the first day of such
Interest Period, select; provided, however, that:
(a) the Borrowers may not select any Interest Period that ends
after the Termination Date or, if the Advances have been converted
to a term loan pursuant to Section 2.05 prior to such selection,
that ends after the Maturity Date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing shall
be of the same duration;
(c) in the case of any such Borrowing, the Borrowers shall not
be entitled to select an Interest Period having duration of nine
months unless, by 2:00 P.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period, each
Lender notifies the Agent that such Lender will be providing funding
for such Borrowing with such Interest Period (the failure of any
Lender to so respond by such time being deemed for all purposes of
this Agreement as an objection by such Lender to the requested
duration of such Interest Period); provided that, if any or all of
the Lenders object to the requested duration of such Interest
Period, the duration of the Interest Period for such Borrowing shall
be one, two, three or six months, as specified by the Borrower
requesting such Borrowing in the applicable Notice of Borrowing as
the desired alternative to an Interest Period of nine months;
(d) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such extension
would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(e) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that
7
succeeds such initial calendar month by the number of months in such
Interest Period, such Interest Period shall end on the last Business
Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Lenders" means the Initial Lenders, each Assuming Lender that shall
become a party hereto pursuant to Section 2.17 or 2.18 and each Person
that shall become a party hereto pursuant to Section 9.07.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement
intended to provide security for the payment or performance of an
obligation, including, without limitation, the lien or retained security
title of a conditional vendor and any easement, right of way or other
encumbrance on title to real property.
"Loan Party" means each Borrower and the Guarantor.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance or
properties of the Guarantor or the Guarantor and its Subsidiaries taken as
a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance or
properties of the Guarantor or the Guarantor and its Subsidiaries taken as
a whole, (b) the rights and remedies of the Agent or any Lender under this
Agreement or any Note or (c) the ability of any Loan Party to perform its
obligations under this Agreement or any Note.
"Maturity Date" means the earlier of (a) the first anniversary of
the Termination Date and (b) the date of termination in whole of the
aggregate Commitments pursuant to Section 2.04 or 6.01.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Guarantor or any ERISA Affiliate
is making or accruing an obligation to make contributions, or has within
any of the preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Guarantor or any ERISA Affiliate and at least one Person other than the
Guarantor and the ERISA Affiliates or (b) was so maintained and in respect
of which the Guarantor or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to
be terminated.
"Non-Consenting Lender" has the meaning specified in Section
2.18(b).
"Note" means a promissory note of a Borrower payable to the order of
any Lender, delivered pursuant to a request made under Section 2.15 in
substantially the form of Exhibit A hereto, evidencing the aggregate
indebtedness of such Borrower to such Lender resulting from the Advances
made by such Lender to such Borrower.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under Section
5.01(b) hereof; (b) Liens
8
imposed by law, such as materialmen's, mechanics', carriers', workmen's
and repairmen's Liens and other similar Liens arising in the ordinary
course of business securing obligations that are not overdue for a period
of more than 30 days or that are being contested in good faith and by
appropriate proceedings that prevent the forfeiture or sale of the assets
subject to such Lien; (c) pledges or deposits to secure obligations under
workers' compensation laws or similar legislation or to secure public or
statutory obligations or, in any such case, to secure reimbursement
obligations under letters of credit or bonds issued to support such
obligations; and (d) easements, rights of way and other encumbrances on
title to real property that do not render title to the property encumbered
thereby unmarketable or materially adversely affect the use of such
property for its present purposes.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Post-Petition Interest" has the meaning specified in Section 7.05.
"PTR Scheme" shall mean the Provisional Treaty Relief Scheme as
described in Inland Revenue Guidelines dated July 1999 and administered by
the Inland Revenue's Centre for Non-Residents.
"Public Debt Rating" means, as of any date, the rating that has been
most recently announced by either S&P or Moody's, as the case may be, for
any class of non-credit enhanced long-term senior unsecured debt issued by
the Guarantor or, if either such rating agency shall have issued more than
one such rating, the lowest such rating issued by such rating agency. For
purposes of the foregoing, (a) if only one of S&P and Moody's shall have
in effect a Public Debt Rating, the Applicable Margin, the Applicable
Percentage and the Applicable Utilization Fee shall be determined by
reference to the available rating; (b) if neither S&P nor Moody's shall
have in effect a Public Debt Rating, the Applicable Margin, the Applicable
Percentage and the Applicable Utilization Fee will be set in accordance
with Level 6 under the definition of "Applicable Margin", "Applicable
Percentage" or "Applicable Utilization Fee", as the case may be; (c) if
the ratings established by S&P and Moody's shall fall within different
levels, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee shall be based upon the higher rating unless
such rating differs by two or more levels, in which case the applicable
level will be deemed to be one level above the lower of such levels; (d)
if any rating established by S&P or Moody's shall be changed, such change
shall be effective as of the date on which such change is first announced
publicly by the rating agency making such change; and (e) if S&P or
Moody's shall change the basis on which ratings are established, each
reference to the Public Debt Rating announced by S&P or Moody's, as the
case may be, shall refer to the then equivalent rating by S&P or Moody's,
as the case may be.
"Reference Banks" means Citibank, ABN AMRO Bank N.V., JPMorgan Chase
Bank and HSBC Bank USA.
"Register" has the meaning specified in Section 9.07(d).
"Required Lenders" means at any time Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount of the
Advances owing to Lenders, or, if no such principal amount is then
outstanding, Lenders having at least a majority in interest of the
Commitments.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Guarantor or any ERISA Affiliate and no Person other than the Guarantor
and the ERISA Affiliates or (b) was so maintained and in respect of which
the
9
Guarantor or any ERISA Affiliate could have liability under Section 4069
of ERISA in the event such plan has been or were to be terminated.
"Subordinated Obligations" has the meaning specified in Section
7.05.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding Voting Stock of such
Person, (b) the interest in the capital or profits of such limited
liability company, partnership or joint venture or (c) the beneficial
interest in such trust or estate is at the time directly or indirectly
owned or controlled by such Person, by such Person and one or more of its
other Subsidiaries or by one or more of such Person's other Subsidiaries.
"Term Loan Conversion Date" means the Termination Date on which all
Advances outstanding on such date are converted into a term loan pursuant
to Section 2.05.
"Term Loan Election" has the meaning specified in Section 2.05.
"Termination Date" means the earlier of (a) May 23, 2005, subject to
the extension thereof pursuant to Section 2.18 and (b) the date of
termination in whole of the Commitments pursuant to Section 2.04 or 6.01;
provided, however, that the Termination Date of any Lender that is a
Non-Consenting Lender to any requested extension pursuant to Section 2.18
shall be the Termination Date in effect immediately prior to the
applicable Extension Date for all purposes of this Agreement.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make Advances to the Borrowers
from time to time on any Business Day during the period from the Effective Date
until the Termination Date in an aggregate amount not to exceed at any time
outstanding such Lender's Commitment. Each Borrowing shall be in an aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and shall consist of Advances of the same Type made on the same day by the
Lenders ratably according to their respective Commitments. Within the limits of
each Lender's Commitment, the Borrowers may borrow under this Section 2.01,
prepay pursuant to Section 2.09 and reborrow under this Section 2.01.
SECTION 2.02. Making the Advances. (a) Each Borrowing shall be made
on notice, given not later than (x) 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances or (y) 11:00 A.M. (New York
City time) on the date of the proposed Borrowing in the case of a Borrowing
consisting of Base Rate Advances, by the applicable Borrower to the Agent, which
shall give to each Lender prompt notice thereof by telecopier. Each such
10
notice of a Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed
immediately in writing, or telecopier in substantially the form of Exhibit B
hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type
of Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing,
and (iv) in the case of a Borrowing consisting of Eurodollar Rate Advances,
initial Interest Period for each such Advance. Each Lender shall, before 1:00
P.M. (New York City time) on the date of such Borrowing make available for the
account of its Applicable Lending Office to the Agent at the Agent's Account, in
same day funds, such Lender's ratable portion of such Borrowing. After the
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Agent will make such funds available to the
Borrower at the Agent's address referred to in Section 9.02.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrowers may not select Eurodollar Rate Advances for
any Borrowing if the aggregate amount of such Borrowing is less than $10,000,000
or if the obligation of the Lenders to make Eurodollar Rate Advances shall then
be suspended pursuant to Section 2.07 or 2.11 and (ii) the Eurodollar Rate
Advances may not be outstanding as part of more than six separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower requesting such Borrowing. In the case of any Borrowing that the
related Notice of Borrowing specifies is to be comprised of Eurodollar Rate
Advances, the applicable Borrower shall indemnify each Lender against any loss,
cost or expense incurred by such Lender as a result of any failure to fulfill on
or before the date specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III, including, without limitation,
any loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.
(d) Unless the Agent shall have received notice from a Lender prior
to the time of any Borrowing that such Lender will not make available to the
Agent such Lender's ratable portion of such Borrowing, the Agent may assume that
such Lender has made such portion available to the Agent on the date of such
Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the applicable Borrower
on such date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to the Agent, such Lender and
such Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to such Borrower until the date such amount is
repaid to the Agent, at (i) in the case of a Borrower, the interest rate
applicable at the time to Advances comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Advance as part of such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made by it
as part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Fees. (a) Facility Fee. The Borrowers agree to pay to
the Agent for the account of each Lender a facility fee on the aggregate amount
of such Lender's Commitment from the Effective Date in the case of each Initial
Lender and from the effective date specified in the Assumption Agreement or in
the Assignment and Acceptance pursuant to which it became a Lender in the case
of each other Lender until the Termination Date at a rate per annum equal to the
Applicable Percentage in effect from time to time, payable in arrears quarterly
on the last day of each March, June, September and December, commencing June 30,
2004, and on the Termination Date.
(b) Agent's Fees. The Borrowers shall pay to the Agent for its own
account such fees as may from time to time be agreed between the Guarantor and
the Agent.
SECTION 2.04. Termination or Reduction of the Commitments. (a)
Optional. The Borrowers shall have the right, upon at least five Business Days'
notice to the Agent, to terminate in whole or permanently
11
reduce ratably in part the unused portions of the respective Commitments of the
Lenders, provided that each partial reduction shall be in the aggregate amount
of $10,000,000 or an integral multiple of $1,000,000 in excess thereof.
(b) Mandatory. On the Termination Date, if the Borrowers have made
the Term Loan Election in accordance with Section 2.05 prior to such date, and
from time to time thereafter upon each prepayment of the Advances, the
Commitments of the Lenders shall be automatically and permanently reduced on a
pro rata basis by an amount equal to the amount by which (i) the aggregate
Commitments immediately prior to such reduction exceeds (ii) the aggregate
unpaid principal amount of all Advances outstanding at such time.
SECTION 2.05. Repayment of Advances. The Borrowers shall, subject to
the next succeeding sentence, repay to the Agent for the ratable account of the
Lenders on the Termination Date the aggregate principal amount of the Advances
then outstanding. The Borrowers may, upon not less than 15 days' notice to the
Agent, elect (the "Term Loan Election") to convert all of the Advances
outstanding on the Termination Date in effect at such time into a term loan
which the Borrowers shall repay in full ratably to the Lenders on the Maturity
Date; provided that the Term Loan Election may not be exercised if a Default has
occurred and is continuing on the date of notice of the Term Loan Election or on
the date on which the Term Loan Election is to be effected. All Advances
converted into a term loan pursuant to this Section 2.05 shall continue to
constitute Advances except that the Borrowers may not reborrow pursuant to
Section 2.01 after all or any portion of such Advances have been prepaid
pursuant to Section 2.09.
SECTION 2.06. Interest on Advances. (a) Scheduled Interest. The
Borrowers shall pay interest on the unpaid principal amount of each Advance
owing to each Lender from the date of such Advance until such principal amount
shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the sum of (x)
the Base Rate in effect from time to time plus (y) the Applicable Margin
in effect from time to time plus (z) the Applicable Utilization Fee, if
any, in effect from time to time, payable in arrears quarterly on the last
day of each March, June, September and December during such periods and on
the date such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance
is a Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the sum of (x) the Eurodollar
Rate for such Interest Period for such Advance plus (y) the Applicable
Margin in effect from time to time plus (z) the Applicable Utilization
Fee, if any, in effect from time to time, payable in arrears on the last
day of such Interest Period and, if such Interest Period has a duration of
more than three months, on each day that occurs during such Interest
Period every three months from the first day of such Interest Period and
on the date such Eurodollar Rate Advance shall be Converted or paid in
full.
(b) Default Interest. Upon the occurrence and during the continuance
of an Event of Default under Section 6.01(a), the Agent may, and upon the
request of the Required Lenders shall, require the Borrowers to pay interest
("Default Interest") on (i) the unpaid principal amount of each Advance owing to
each Lender, payable in arrears on the dates referred to in clause (a)(i) or
(a)(ii) above, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on such Advance pursuant to clause (a)(i) or
(a)(ii) above and (ii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable hereunder that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to clause (a)(i) above;
provided, however, that following acceleration of the Advances pursuant to
Section 6.01, Default Interest shall accrue and be payable hereunder whether or
not previously required by the Agent.
SECTION 2.07. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Agent timely information for the purpose of determining
each Eurodollar Rate. If any one or more of the Reference Banks shall not
furnish such timely information to the Agent for the purpose of determining any
such interest rate, the Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks. The Agent shall
give prompt notice to the applicable Borrower and the Lenders of the applicable
interest
12
rate determined by the Agent for purposes of Section 2.06(a)(i) or (ii), and the
rate, if any, furnished by each Reference Bank for the purpose of determining
the interest rate under Section 2.06(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Agent that the Eurodollar Rate for any Interest Period for
such Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period, the Agent shall forthwith so notify the applicable
Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Borrowers and the Lenders that the
circumstances causing such suspension no longer exist.
(c) If any Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify such Borrower and the Lenders and such Advances
will automatically, on the last day of the then existing Interest Period
therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $10,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default under Section 6.01(a), (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended.
(f) If Telerate Markets Page 3750 is unavailable and fewer than two
Reference Banks furnish timely information to the Agent for determining the
Eurodollar Rate for any Eurodollar Rate Advances,
(i) the Agent shall forthwith notify the Borrowers and the Lenders
that the interest rate cannot be determined for such Eurodollar Rate
Advances,
(ii) with respect to Eurodollar Rate Advances, each such Advance
will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance (or if such Advance is then a
Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate Advances
or to Convert Advances into Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Borrowers and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.08. Optional Conversion of Advances. Each Borrower may on
any Business Day, upon notice given to the Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.07 and 2.11, Convert all
or any portion of the Advances of one Type comprising the same Borrowing into
Advances of the other Type; provided, however, that any Conversion of Eurodollar
Rate Advances into Base Rate Advances shall be made only on the last day of an
Interest Period for such Eurodollar Rate Advances, any Conversion of Base Rate
Advances into Eurodollar Rate Advances shall be in an amount not less than the
minimum amount specified in Section 2.02(b) and no Conversion of any Advances
shall result in more separate Borrowings than permitted under Section 2.02(b).
Each such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be Converted, and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for each such Advance. Each notice of Conversion shall
be irrevocable and binding on the applicable Borrower.
SECTION 2.09. Prepayments of Advances. Each Borrower may, upon
notice at least two Business Days' prior to the date of such prepayment, in the
case of Eurodollar Rate Advances, and not later than
13
11:00 A.M. (New York City time) on the date of such prepayment, in the case of
Base Rate Advances, to the Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
giving such notice shall, prepay the outstanding principal amount of the
Advances comprising part of the same Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that (x) each partial prepayment shall be in
an aggregate principal amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof and (y) in the event of any such prepayment of a
Eurodollar Rate Advance, such Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 9.04(c).
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation after the date hereof, or (ii) the compliance with any guideline or
request issued after the date hereof from any central bank or other governmental
authority including, without limitation, any agency of the European Union or
similar monetary or multinational authority (whether or not having the force of
law), there shall be any increase in the cost to any Lender of agreeing to make
or making, funding or maintaining Eurodollar Rate Advances (excluding for
purposes of this Section 2.10 any such increased costs resulting from (i) Taxes
or Other Taxes (as to which Section 2.13 shall govern) and (ii) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such
Lender is organized or has its Applicable Lending Office or any political
subdivision thereof), then the Borrowers shall from time to time, upon demand by
such Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender additional amounts sufficient to compensate such Lender
for such increased cost; provided, however, that before making any such demand,
each Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would avoid the
need for, or reduce the amount of, such increased cost and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
A certificate as to the amount of such increased cost, submitted to the
Borrowers and the Agent by such Lender, shall be conclusive and binding for all
purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request taking effect or issued after the date
hereof from any central bank or other governmental authority (whether or not
having the force of law) affects or would affect the amount of capital required
or expected to be maintained by such Lender or any corporation controlling such
Lender and that the amount of such capital is increased by or based upon the
existence of such Lender's commitment to lend hereunder and other commitments of
this type, then, upon demand by such Lender (with a copy of such demand to the
Agent), the Borrowers shall pay to the Agent for the account of such Lender,
from time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender or such corporation in the light of such circumstances,
to the extent that such Lender reasonably determines such increase in capital to
be allocable to the existence of such Lender's commitment to lend hereunder. A
certificate as to such amounts submitted to the Borrowers and the Agent by such
Lender shall be conclusive and binding for all purposes, absent manifest error.
(c) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Borrowers shall
not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than six months prior to the date
that such Lender notifies the Borrowers of the circumstances giving rise to such
increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided further that, if the circumstances giving rise
to such increased costs or reductions cause such increased costs or reductions
to be retroactive, then the six-month period referred to above shall be extended
to include the period of retroactive effect thereof.
SECTION 2.11. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Agent that the introduction of or
any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (a) each Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance and (b) the
obligation of the Lenders to make Eurodollar Rate Advances or to Convert
Advances into Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Borrowers and the Lenders that the circumstances causing such
suspension no longer exist; provided, however, that
14
before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Eurodollar Lending Office if the making of such a
designation would allow such Lender or its Eurodollar Lending Office to continue
to perform its obligations to make Eurodollar Rate Advances or to continue to
fund or maintain Eurodollar Rate Advances and would not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.12. Payments and Computations. (a) The Borrowers shall
make each payment hereunder, irrespective of any right of counterclaim or
set-off, not later than 11:00 A.M. (New York City time) on the day when due in
U.S. dollars to the Agent at the Agent's Account in same day funds. The Agent
will promptly thereafter cause to be distributed like funds relating to the
payment of principal or interest or facility fees ratably (other than amounts
payable pursuant to Section 2.10, 2.13 or 9.04(c)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds relating
to the payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon any Assuming Lender becoming a
Lender hereunder as a result of a Commitment Increase pursuant to Section 2.17
or an extension of the Termination Date pursuant to Section 2.18, and upon the
Agent's receipt of such Lender's Assumption Agreement and recording of the
information contained therein in the Register, from and after the applicable
Increase Date or Extension Date, as the case may be, the Agent shall make all
payments hereunder and under any Notes issued in connection therewith in respect
of the interest assumed thereby to the Assuming Lender. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 9.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under any Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) Each Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under the
Note held by such Lender, to charge from time to time against any or all of such
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall be
made by the Agent on the basis of a year of 365 or 366 days, as the case may be,
and all computations of interest based on the Eurodollar Rate or the Federal
Funds Rate and of fees shall be made by the Agent on the basis of a year of 360
days, in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or fees
are payable. Each determination by the Agent of an interest rate hereunder shall
be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Agent shall have received notice from the applicable
Borrower prior to the date on which any payment is due to the Lenders hereunder
that such Borrower will not make such payment in full, the Agent may assume that
such Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent the applicable Borrower shall not have so made such payment in
full to the Agent, each Lender shall repay to the Agent forthwith on demand such
amount distributed to such Lender together with interest thereon, for each day
from the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Agent, at the Federal Funds Rate.
SECTION 2.13. Taxes. (a) Any and all payments by any Loan Party to
or for the account of any Lender or the Agent hereunder or under the Notes or
any other documents to be delivered hereunder shall be made, in accordance with
Section 2.12 or the applicable provisions of such other documents, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all
15
liabilities with respect thereto, excluding, in the case of each Lender and the
Agent, taxes imposed on its overall net income, and franchise taxes imposed on
it in lieu of net income taxes, by the jurisdiction under the laws of which such
Lender or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its
overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof and excluding such taxes imposed by the United
States or the United Kingdom that are payable as of the date such Lender or the
Agent became a party to this Agreement (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in respect of
payments hereunder or under the Notes being hereinafter referred to as "Taxes").
If any Loan Party shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under any Note or any other documents to
be delivered hereunder to any Lender or the Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.13) such Lender or the Agent (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii) such Loan
Party shall make such deductions and (iii) such Loan Party shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrowers shall pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes or any
other documents to be delivered hereunder or from the execution, delivery or
registration of, performing under, or otherwise with respect to, this Agreement
or the Notes or any other documents to be delivered hereunder (hereinafter
referred to as "Other Taxes").
(c) The Borrowers shall indemnify each Lender and the Agent for and
hold it harmless against the full amount of Taxes or Other Taxes (including,
without limitation, taxes of any kind imposed or asserted by any jurisdiction on
amounts payable under this Section 2.13) imposed on or paid by such Lender or
the Agent (as the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto. This indemnification
shall be made within 30 days from the date such Lender or the Agent (as the case
may be) makes written demand therefor.
(d) Within 45 days after the date of any payment of Taxes, the
applicable Loan Party shall furnish to the Agent, at its address referred to in
Section 9.02, the original or a certified copy of a receipt evidencing such
payment to the extent such a receipt is issued therefor, or other written proof
of payment thereof that is reasonably satisfactory to the Agent. In the case of
any payment hereunder or under the Notes or any other documents to be delivered
hereunder by or on behalf of any Loan Party (other than OFP) through an account
or branch outside the United States or by or on behalf of any Loan Party (other
than OFP) by a payor that is not a United States person, if such Loan Party
determines that no Taxes are payable in respect thereof, such Loan Party shall
furnish, or shall cause such payor to furnish, to the Agent, at such address, an
opinion of counsel acceptable to the Agent stating that such payment is exempt
from Taxes. For purposes of this subsection (d) and subsection (e), the terms
"United States" and "United States person" shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assumption
Agreement or the Assignment and Acceptance pursuant to which it becomes a Lender
in the case of each other Lender, and from time to time thereafter as reasonably
requested in writing by OFI and OCI (but only so long as such Lender remains
lawfully able to do so), shall provide each of the Agent OFI and OCI with two
original Internal Revenue Service forms W-8BEN or W-8ECI, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments made by OFI and OCI pursuant to this Agreement or
the Notes. If the form provided by a Lender at the time such Lender first
becomes a party to this Agreement indicates a United States interest withholding
tax rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Lender provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
form; provided, however, that, if at the date of the Assignment and Acceptance
pursuant to which a Lender assignee becomes a party to this Agreement, the
Lender assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall
16
include (in addition to withholding taxes that may be imposed in the future or
other amounts otherwise includable in Taxes) United States withholding tax, if
any, applicable with respect to the Lender assignee on such date. If any form or
document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form W-8BEN
or W-8ECI, that the Lender reasonably considers to be confidential, the Lender
shall give notice thereof to OFI and OCI and shall not be obligated to include
in such form or document such confidential information.
(f) For any period with respect to which a Lender has failed to
provide OFI and OCI with the appropriate form, certificate or other document
described in Section 2.13(e) (other than if such failure is due to a change in
law, or in the interpretation or application thereof, occurring subsequent to
the date on which a form, certificate or other document originally was required
to be provided, or if such form, certificate or other document otherwise is not
required under subsection (e) above), such Lender shall not be entitled to
indemnification under Section 2.13(a) or (c) with respect to Taxes imposed by
the United States by reason of such failure; provided, however, that should a
Lender become subject to Taxes because of its failure to deliver a form,
certificate or other document required hereunder, the Borrowers shall take such
steps as the Lender shall reasonably request to assist the Lender to recover
such Taxes.
(g) In respect of Advances to OFP, each Lender shall designate an
Applicable Lending Office that is beneficially entitled to interest under such
Advances and that, on the date of this Agreement or (in the case of any Person
that becomes a Lender hereunder by means of an assignment) on the date such
Lender becomes a party hereto is either (i) within the charge to United Kingdom
corporation tax in respect of interest in respect of an advance by a person that
was a bank (for the purposes of Section 349 Income and Corporation Taxes Act
1988) at the time the advance was made; or (ii) resident in a country with which
the United Kingdom has a double taxation agreement which makes provision for
full exemption from United Kingdom taxation on interest payable by OFP pursuant
to this Agreement and does not carry on business in the United Kingdom through a
permanent establishment with which the payment is effectively connected (each
such bank which is so resident being hereinafter in this Section 2.13 referred
to as a "Treaty Lender"); or (iii) a company resident in the United Kingdom, or
a partnership each member of which is a company resident in the United Kingdom
for United Kingdom tax purposes; or (iv) a company not so resident in the United
Kingdom which carries on a trade in the United Kingdom through a branch or
agency and which is required to bring into account interest payable to it by OFP
pursuant to this Agreement in computing its chargeable profits for the purposes
of Section 11(2) of the Income and Corporation Taxes Xxx 0000. If any Lender
does not or ceases to comply with clause (i), (ii), (iii) or (iv) above other
than by reason of any change after the date of this Agreement in (or in the
interpretation, administration or application of) any law or double taxation
agreement or any published practice or concession of any relevant taxing
authority, the Borrowers shall not be required to compensate such Lender under
Section 2.13(a) or 2.13(c) for the amount of Taxes imposed by the United Kingdom
in consequence. Any Lender to whom clause (ii) above is relevant shall cooperate
with OFP in promptly completing any procedural formalities necessary for OFP to
obtain authorization to make interest payments without deduction for UK income
tax.
(h) Each Treaty Lender irrevocably appoints the Agent to act as
syndicate manager under, and authorizes the Agent to operate, and take any
action necessary or desirable under, the PTR Scheme in connection with any
Borrowing hereunder. Each Treaty Lender shall cooperate with the Agent in
completing any procedural formalities necessary under the PTR Scheme, and shall
promptly supply to the Agent such information as the Agent may request in
connection with the operation of the PTR Scheme. Each Treaty Lender without
limiting the liability of any Borrower under this Agreement, shall, within five
Business Days of demand, indemnify the Agent for any liability or loss incurred
by the Agent as a result of the Agent acting as syndicate manager under the PTR
Scheme in connection with the Treaty Lender's participation in any Borrowing
(except to the extent that the liability or loss arises directly from the
Agent's gross negligence or willful misconduct). Each Treaty Lender shall,
within five Business Days of demand, indemnify each Borrower for any Tax which
such Borrower becomes liable to pay in respect of any payments made to such
Treaty Lender arising as a result of any incorrect information supplied by such
Treaty Lender which results in a provisional authority issued by the UK Inland
Revenue under the PTR Scheme being withdrawn. Each Borrower acknowledges that it
is fully aware of its contingent obligations under the PTR Scheme and shall (i)
promptly inform the Agent of all actions required to be performed by the Agent
under the PTR Scheme, (ii) promptly supply to the Agent such information as the
Agent may request in connection with the operation of the PTR Scheme; and (iii)
act in accordance with any provisional notice issued by the UK Inland
17
Revenue under the PTR Scheme. The Agent agrees to provide, as soon as reasonably
practicable, a copy of any provisional authority issued to it under the PTR
Scheme in connection with any Borrowing to those Borrowers specified in such
provisional authority. Each of the Borrowers, the Treaty Lenders and the Agent
acknowledges that the Agent: (i) is entitled to rely completely upon information
provided to it in connection with this clause; (ii) is not obliged to undertake
any inquiry into the accuracy of such information nor into the status of the
Treaty Lender or, as the case may be, Borrower providing such information; and
(iii) shall have no liability to any person for the accuracy of any information
it submits to the UK Inland Revenue in connection with this clause.
(i) Any Lender claiming any additional amounts payable pursuant to
this Section 2.13 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurodollar Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Advances owing to it (other than
pursuant to Section 2.10, 2.13 or 9.04(c)) in excess of its ratable share of
payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. Each Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.14
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of such Borrower in the amount of such
participation.
SECTION 2.15. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Advance owing
to such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder in respect
of Advances made to such Borrower. The Borrowers agree that upon notice by any
Lender to the Borrowers (with a copy of such notice to the Agent) to the effect
that a Note is required or appropriate in order for such Lender to evidence
(whether for purposes of pledge, enforcement or otherwise) the Advances owing
to, or to be made by, such Lender, the Borrowers shall promptly execute and
deliver to such Lender a Note payable to the order of such Lender in a principal
amount up to the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 9.07(d)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date and amount of
each Borrowing made hereunder, the Type of Advances comprising such Borrowing
and, if appropriate, the Interest Period applicable thereto, (ii) the terms of
each Assumption Agreement and each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due and payable or
to become due and payable from each Borrower to each Lender hereunder and (iv)
the amount of any sum received by the Agent from each Borrower hereunder and
each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant
to subsection (b) above, and by each Lender in its account or accounts pursuant
to subsection (a) above, shall be prima facie evidence of the amount of
principal and interest due and payable or to become due and payable from each
Borrower to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender to make an
entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of any
Borrower under this Agreement.
18
SECTION 2.16. Use of Proceeds. The proceeds of the Advances shall be
available (and each Borrower agrees that it shall use such proceeds) solely for
general corporate purposes of the Borrowers and their Subsidiaries, including,
without limitation, to fund acquisitions otherwise not prohibited hereunder.
SECTION 2.17. Increase in the Aggregate Commitments. (a) The
Guarantor may, at any time but in any event not more than once in any calendar
year prior to the Termination Date, by notice to the Agent, request that the
aggregate amount of the Commitments be increased by an amount of $10,000,000 or
an integral multiple thereof (each a "Commitment Increase") to be effective as
of a date that is at least 90 days prior to the scheduled Termination Date then
in effect (the "Increase Date") as specified in the related notice to the Agent;
provided, however that (i) in no event shall the aggregate amount of the
Commitments at any time exceed $1,000,000,000 and (ii) on the date of any
request by the Guarantor for a Commitment Increase and on the related Increase
Date the applicable conditions set forth in Article III shall be satisfied.
(b) The Agent shall promptly notify the Lenders of a request by the
Guarantor for a Commitment Increase, which notice shall include (i) the proposed
amount of such requested Commitment Increase, (ii) the proposed Increase Date
and (iii) the date by which Lenders wishing to participate in the Commitment
Increase must commit to an increase in the amount of their respective
Commitments (the "Commitment Date"). Each Lender that is willing to participate
in such requested Commitment Increase (each an "Increasing Lender") shall, in
its sole discretion, give written notice to the Agent on or prior to the
Commitment Date of the amount by which it is willing to increase its Commitment.
If the Lenders notify the Agent that they are willing to increase the amount of
their respective Commitments by an aggregate amount that exceeds the amount of
the requested Commitment Increase, the requested Commitment Increase shall be
allocated among the Lenders willing to participate therein in such amounts as
are agreed between the Guarantor and the Agent.
(c) Promptly following each Commitment Date, the Agent shall notify
the Guarantor as to the amount, if any, by which the Lenders are willing to
participate in the requested Commitment Increase. If the aggregate amount by
which the Lenders are willing to participate in any requested Commitment
Increase on any such Commitment Date is less than the requested Commitment
Increase, then the Guarantor may extend offers to one or more Eligible Assignees
to participate in any portion of the requested Commitment Increase that has not
been committed to by the Lenders as of the applicable Commitment Date; provided,
however, that the Commitment of each such Eligible Assignee shall be in an
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof.
(d) On each Increase Date, each Eligible Assignee that accepts an
offer to participate in a requested Commitment Increase in accordance with
Section 2.17(b) (each such Eligible Assignee and each Eligible Assignee that
agrees to an extension of the Termination Date in accordance with Section
2.18(c), an "Assuming Lender") shall become a Lender party to this Agreement as
of such Increase Date and the Commitment of each Increasing Lender for such
requested Commitment Increase shall be so increased by such amount (or by the
amount allocated to such Lender pursuant to the last sentence of Section
2.17(b)) as of such Increase Date; provided, however, that the Agent shall have
received on or before such Increase Date the following, each dated such date:
(i) (A) certified copies of resolutions of the Board of Directors of
each Loan Party or the Executive Committee of such Board approving the
Commitment Increase and (B) an opinion of counsel for the Loan Parties
(which may be in-house counsel), in substantially the form of Exhibits D-1
and D-2 hereto;
(ii) an assumption agreement from each Assuming Lender, if any, in
form and substance satisfactory to the Guarantor and the Agent (each an
"Assumption Agreement"), duly executed by such Eligible Assignee, the
Agent and the Guarantor; and
(iii) confirmation from each Increasing Lender of the increase in
the amount of its Commitment in a writing satisfactory to the Guarantor
and the Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.17(d), the Agent shall notify
the Lenders (including, without limitation, each Assuming Lender) and the
19
Loan Parties, on or before 1:00 P.M. (New York City time), by telecopier, of the
occurrence of the Commitment Increase to be effected on such Increase Date and
shall record in the Register the relevant information with respect to each
Increasing Lender and each Assuming Lender on such date.
SECTION 2.18. Extension of Termination Date. (a) At least 30 days
but not more than 45 days prior to the Termination Date, the Guarantor, by
written notice to the Agent, may request an extension of the Termination Date in
effect at such time by 364 days from its then scheduled expiration; provided,
however, that the Borrowers shall not have made the Term Loan Election for
Advances outstanding on such Termination Date prior to such time. The Agent
shall promptly notify each Lender of such request, and each Lender shall in
turn, in its sole discretion, not later than 20 days prior to the Termination
Date, notify the Guarantor and the Agent in writing as to whether such Lender
will consent to such extension. If any Lender shall fail to notify the Agent and
the Guarantor in writing of its consent to any such request for extension of the
Termination Date at least 20 days prior to the Termination Date, such Lender
shall be deemed to be a Non-Consenting Lender with respect to such request. The
Agent shall notify the Guarantor not later than 15 days prior to the Termination
Date of the decision of the Lenders regarding the Guarantor's request for an
extension of the Termination Date.
(b) If all the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.18, the Termination Date in
effect at such time shall, effective as at the Termination Date (the "Extension
Date"), be extended for 364 days; provided that on each Extension Date the
applicable conditions set forth in Article III shall be satisfied. If less than
all of the Lenders consent in writing to any such request in accordance with
subsection (a) of this Section 2.18, the Termination Date in effect at such time
shall, effective as at the applicable Extension Date and subject to subsection
(d) of this Section 2.18, be extended as to those Lenders that so consented
(each a "Consenting Lender") but shall not be extended as to any other Lender
(each a "Non-Consenting Lender"). To the extent that the Termination Date is not
extended as to any Lender pursuant to this Section 2.18 and the Commitment of
such Lender is not assumed in accordance with subsection (c) of this Section
2.18 on or prior to the applicable Extension Date, the Commitment of such
Non-Consenting Lender shall automatically terminate in whole on such unextended
Termination Date without any further notice or other action by the Guarantor,
such Lender or any other Person and the Borrower s shall immediately repay all
Advances and other amounts owing to such Non-Consenting Lender hereunder;
provided that such Non-Consenting Lender's rights under Sections 2.10, 2.13 and
9.04, and its obligations under Section 8.05, shall survive the Termination Date
for such Lender as to matters occurring prior to such date. It is understood and
agreed that no Lender shall have any obligation whatsoever to agree to any
request made by the Guarantor for any requested extension of the Termination
Date.
(c) If less than all of the Lenders consent to any such request
pursuant to subsection (a) of this Section 2.18, the Agent shall promptly so
notify the Consenting Lenders, and each Consenting Lender may, in its sole
discretion, give written notice to the Agent not later than 10 days prior to the
Termination Date of the amount of the Non-Consenting Lenders' Commitments for
which it is willing to accept an assignment. If the Consenting Lenders notify
the Agent that they are willing to accept assignments of Commitments in an
aggregate amount that exceeds the amount of the Commitments of the
Non-Consenting Lenders, such Commitments shall be allocated among the Consenting
Lenders willing to accept such assignments in such amounts as are agreed between
the Guarantor and the Agent. If after giving effect to the assignments of
Commitments described above there remain any Commitments of Non-Consenting
Lenders, the Guarantor may arrange for one or more Consenting Lenders or other
Eligible Assignees as Assuming Lenders to assume, effective as of the Extension
Date, any Non-Consenting Lender's Commitment and all of the obligations of such
Non-Consenting Lender under this Agreement thereafter arising, without recourse
to or warranty by, or expense to, such Non-Consenting Lender; provided, however,
that the amount of the Commitment of any such Assuming Lender as a result of
such substitution shall in no event be less than $10,000,000 unless the amount
of the Commitment of such Non-Consenting Lender is less than $10,000,000, in
which case such Assuming Lender shall assume all of such lesser amount; and
provided further that:
(i) any such Consenting Lender or Assuming Lender shall have paid to
such Non-Consenting Lender (A) the aggregate principal amount of, and any
interest accrued and unpaid to the effective date of the assignment on,
the outstanding Advances, if any, of such Non-Consenting Lender plus
20
(B) any accrued but unpaid facility fees owing to such Non-Consenting
Lender as of the effective date of such assignment, in each case, to the
extent of such assignment;
(ii) all additional costs reimbursements, expense reimbursements and
indemnities payable to such Non-Consenting Lender, and all other accrued
and unpaid amounts owing to such Non-Consenting Lender hereunder, as of
the effective date of such assignment shall have been paid to such
Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 9.07(a) for such
assignment shall have been paid;
provided further that such Non-Consenting Lender's rights under Sections 2.10,
2.13 and 9.04, and its obligations under Section 8.05, shall survive such
substitution as to matters occurring prior to the date of substitution. At least
three Business Days prior to any Extension Date or such later date as the Agent
may agree, (A) each such Assuming Lender, if any, shall have delivered to the
Guarantor and the Agent an Assumption Agreement, duly executed by such Assuming
Lender, such Non-Consenting Lender, the Guarantor and the Agent, (B) any such
Consenting Lender shall have delivered confirmation in writing satisfactory to
the Guarantor and the Agent as to the increase in the amount of its Commitment
and (C) each Non-Consenting Lender being replaced pursuant to this Section 2.18
shall have delivered to the Agent any Note or Notes held by such Non-Consenting
Lender. Upon the payment or prepayment of all amounts referred to in clauses
(i), (ii) and (iii) of the immediately preceding sentence, each such Consenting
Lender or Assuming Lender, as of the Extension Date, will be substituted for
such Non-Consenting Lender under this Agreement and shall be a Lender for all
purposes of this Agreement, without any further acknowledgment by or the consent
of the other Lenders, and the obligations of each such Non-Consenting Lender
hereunder shall, by the provisions hereof, be released and discharged.
(d) If (after giving effect to any assignments or assumptions
pursuant to subsection (c) of this Section 2.18) Lenders having Commitments
equal to at least 50% of the Commitments in effect immediately prior to the
Extension Date consent in writing to a requested extension (whether by execution
or delivery of an Assumption Agreement or otherwise) not later than one Business
Day prior to such Extension Date, the Agent shall so notify the Guarantor, and,
subject to the satisfaction of the applicable conditions in Article III, the
Termination Date then in effect shall be extended for the additional 364-day
period as described in subsection (a) of this Section 2.18, and all references
in this Agreement, and in the Notes, if any, to the "Termination Date" shall,
with respect to each Consenting Lender and each Assuming Lender for such
Extension Date, refer to the Termination Date as so extended. Promptly following
each Extension Date, the Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) of the extension of the scheduled Termination
Date in effect immediately prior thereto and shall thereupon record in the
Register the relevant information with respect to each such Consenting Lender
and each such Assuming Lender.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 2003.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Guarantor or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i)
could be reasonably likely to have a Material Adverse Effect other than
the matters described on Schedule 3.01(b) hereto (the "Disclosed
Litigation") or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or the consummation of the
transactions contemplated hereby, and there shall have been no adverse
change in the status, or financial effect on the
21
Guarantor or any of its Subsidiaries, of the Disclosed Litigation from
that described on Schedule 3.01(b) hereto.
(c) Nothing shall have come to the attention of the Lenders during
the course of their due diligence investigation to lead them to believe
that the Information Memorandum was or has become misleading, incorrect or
incomplete in any material respect; without limiting the generality of the
foregoing, the Lenders shall have been given such access to the
management, records, books of account, contracts and properties of the
Guarantor and its Subsidiaries as they shall have requested.
(d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are not
acceptable to the Lenders) and shall remain in effect, and no law or
regulation shall be applicable in the reasonable judgment of the Lenders
that restrains, prevents or imposes materially adverse conditions upon the
transactions contemplated hereby.
(e) The Borrowers shall have notified each Lender and the Agent in
writing as to the proposed Effective Date.
(f) The Borrowers shall have paid all accrued fees and expenses of
the Agent and the Lenders (including the accrued fees and expenses of
counsel to the Agent).
(g) On the Effective Date, the following statements shall be true
and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Guarantor, dated
the Effective Date, stating that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes
a Default.
(h) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance satisfactory to
the Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders to the extent
requested by any Lender pursuant to Section 2.15.
(ii) Certified copies of the resolutions of the Board of
Directors of each Loan Party approving this Agreement and the Notes
to which it is a party, and of all documents evidencing other
necessary corporate action and governmental approvals, if any, with
respect to this Agreement and the Notes to which it is a party.
(iii) A certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying the names and true signatures of the
officers of such Loan Party authorized to sign this Agreement and
the Notes to which it is a party and the other documents to be
delivered by it hereunder.
(iv) A favorable opinion of Xxxxx Xxxxxxxxxx LLP, New York
counsel for the Loan Parties, and MacFarlanes, English counsel for
OFP, substantially in the form of Exhibits D-1 and D-2 hereto,
respectively, and as to such other matters as any Lender through the
Agent may reasonably request.
(v) A favorable opinion of Shearman & Sterling LLP, counsel
for the Agent, in form and substance satisfactory to the Agent.
22
(i) The Borrowers shall have terminated the commitments and paid in
full all Debt, interest, fees and other amounts outstanding, under the
364-Day Credit Agreement dated as of November 13, 2003 among the
Borrowers, the lenders parties thereto and Citibank, as agent, and each of
the Lenders that is a party to such credit agreement hereby waives, upon
the execution of this Agreement, any requirement of prior notice relating
to the termination of the commitments thereunder.
SECTION 3.02. Conditions Precedent to Each Borrowing, Commitment
Increase and Extension Date. The obligation of each Lender to make an Advance on
the occasion of each Borrowing, each Commitment Increase and each extension of
Commitments pursuant to Section 2.18 shall be subject to the conditions
precedent that the Effective Date shall have occurred and on the date of such
Borrowing, such Increase Date or such extension date (a) the following
statements shall be true (and each of the giving of the applicable Notice of
Borrowing, request for Commitment Increase, request for Commitment Extension and
the acceptance by a Borrower of the proceeds of such Borrowing shall constitute
a representation and warranty by such Borrower that on the date of such
Borrowing, such Increase Date or such extension date such statements are true):
(i) the representations and warranties contained in Section 4.01
(except, in the case of a Borrowing, the representations set forth in the
last sentence of subsection (e) thereof and in subsection (f)(i) thereof)
are correct on and as of such date, before and after giving effect to such
Borrowing, such Commitment Increase or such extension and to the
application of the proceeds therefrom, as though made on and as of such
date, and
(ii) no event has occurred and is continuing, or would result from
such Borrowing, such Commitment Increase or such extension or from the
application of the proceeds therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the
Borrowers, by notice to the Lenders, designate as the proposed Effective Date,
specifying its objection thereto. The Agent shall promptly notify the Lenders of
the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Guarantor. The
Guarantor represents and warrants as follows:
(a) Each Loan Party is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization.
(b) The execution, delivery and performance by each Loan Party of
this Agreement and the Notes to be delivered by it, and the consummation
of the transactions contemplated hereby, are within the such Loan Party's
corporate powers, have been duly authorized by all necessary corporate
action, and do not contravene (i) the such Loan Party's charter or by-laws
or other organizational documents or (ii) law or any contractual
restriction binding on or affecting any Loan Party.
23
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any
other third party is required for the due execution, delivery and
performance by the any Loan Party of this Agreement or the Notes to be
delivered by it.
(d) This Agreement has been, and each of the Notes to be delivered
by it when delivered hereunder will have been, duly executed and delivered
by each Loan Party party thereto. This Agreement is, and each of the Notes
when delivered hereunder will be, the legal, valid and binding obligation
of each Loan Party party thereto enforceable against such Loan Party in
accordance with their respective terms.
(e) The Consolidated balance sheet of the Guarantor and its
Subsidiaries as at December 31, 2003, and the related Consolidated
statements of income and cash flows of the Guarantor and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of KPMG LLP,
independent public accountants, and the Consolidated balance sheet of the
Guarantor and its Subsidiaries as at March 31, 2004, and the related
Consolidated statements of income and cash flows of the Guarantor and its
Subsidiaries for the three months then ended, duly certified by the chief
financial officer of the Guarantor, copies of which have been furnished to
each Lender, fairly present, subject, in the case of said balance sheet as
at March 31, 2004, and said statements of income and cash flows for the
three months then ended, to year-end audit adjustments, the Consolidated
financial condition of the Guarantor and its Subsidiaries as at such dates
and the Consolidated results of the operations of the Guarantor and its
Subsidiaries for the periods ended on such dates, all in accordance with
generally accepted accounting principles consistently applied. Since
December 31, 2003, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Guarantor,
threatened action, suit, investigation, litigation or proceeding,
including, without limitation, any Environmental Action, affecting the
Guarantor or any of its Subsidiaries before any court, governmental agency
or arbitrator that (i) could be reasonably likely to have a Material
Adverse Effect (other than the Disclosed Litigation), and there has been
no adverse change in the status, or financial effect on the Guarantor or
any of its Subsidiaries, of the Disclosed Litigation from that described
on Schedule 3.01(b) hereto or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(g) No Loan Party is engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any Advance will be used to purchase or carry
any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
(h) No Loan Party is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or
contemporaneously furnished by or on behalf of any Loan Party in writing
to any Lender (including, without limitation, all information contained in
this Agreement) for purposes of or in connection with this Agreement or
any transaction contemplated herein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of such
Loan Party in writing to any Lender will be, true and accurate in all
material respects on the date as of which such information is dated or
certified and does not or will not omit to state any fact necessary to
make such information (taken as a whole) not misleading in any material
respect at such time in light of the circumstances under which such
information was provided.
24
ARTICLE V
COVENANTS OF THE GUARANTOR
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Guarantor
will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
ERISA and Environmental Laws except, in each case, to the extent that
failure to comply would not reasonably be expected to have a Material
Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (ii) all lawful claims that, if
unpaid, might by law become a Lien upon its property; provided, however,
that neither the Guarantor nor any of its Subsidiaries shall be required
to pay or discharge any such tax, assessment, charge or claim that is
being contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the Guarantor
or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises; provided,
however, that the Guarantor and its Subsidiaries may consummate any merger
or consolidation permitted under Section 5.02(b) and provided further that
neither the Guarantor nor any of its Subsidiaries shall be required to
preserve any right or franchise, or the existence of any Subsidiary of the
Guarantor that is not a Borrower, if the Board of Directors of the
Guarantor or the Borrower that is the corporate parent of such Subsidiary
shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Guarantor or such Borrower, as the case
may be, and that the loss thereof is not disadvantageous in any material
respect to the Guarantor, such Borrower or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to time,
permit the Agent or any of the Lenders or any agents or representatives
thereof, to examine and make copies of and abstracts from the records and
books of account of, and visit the properties of, the Guarantor and any of
its Subsidiaries, and to discuss the affairs, finances and accounts of the
Guarantor and any of its Subsidiaries with any of their officers or
directors and with their independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Guarantor and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each of its
SubIsidiaries to conduct, all transactions otherwise permitted under this
Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Guarantor or such Subsidiary than
it would obtain in a comparable arm's-length transaction with a Person not
an Affiliate.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 50 days after
the end of each of the first three quarters of each fiscal year of
the Guarantor, the Consolidated balance sheet of the
25
Guarantor and its Subsidiaries as of the end of such quarter and
Consolidated statements of income and cash flows of the Guarantor
and its Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, duly
certified (subject to year-end audit adjustments) by the chief
financial officer of the Guarantor as having been prepared in
accordance with generally accepted accounting principles and
certificates of the chief financial officer of the Guarantor as to
compliance with the terms of this Agreement and setting forth in
reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03, provided that in the event of any
change in generally accepted accounting principles used in the
preparation of such financial statements, the Guarantor shall also
provide, if necessary for the determination of compliance with
Section 5.03, a statement of reconciliation conforming such
financial statements to GAAP;
(ii) as soon as available and in any event within 95 days
after the end of each fiscal year of the Guarantor, a copy of the
annual audit report for such year for the Guarantor and its
Subsidiaries, containing the Consolidated balance sheet of the
Guarantor and its Subsidiaries as of the end of such fiscal year and
Consolidated statements of income and cash flows of the Guarantor
and its Subsidiaries for such fiscal year, in each case accompanied
by an opinion acceptable to the Required Lenders by KPMG LLP or
other independent public accountants acceptable to the Required
Lenders and certificates of the chief financial officer of the
Guarantor as to compliance with the terms of this Agreement and
setting forth in reasonable detail the calculations necessary to
demonstrate compliance with Section 5.03, provided that in the event
of any change in generally accepted accounting principles used in
the preparation of such financial statements, the Guarantor shall
also provide, if necessary for the determination of compliance with
Section 5.03, a statement of reconciliation conforming such
financial statements to GAAP;
(iii) as soon as possible and in any event within five days
after any senior officer of the Guarantor or a Borrower becomes
aware or should have become aware of the occurrence of any Default,
the occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer of the
Guarantor setting forth details of such Default and the action that
the Guarantor has taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies of
all reports that the Guarantor sends to any of its securityholders,
and copies of all reports and registration statements that the
Guarantor or any Subsidiary files with the Securities and Exchange
Commission or any national securities exchange;
(v) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Guarantor or any of its Subsidiaries of the
type described in Section 4.01(f); and
(vi) such other information respecting the Guarantor or any of
its Subsidiaries as any Lender through the Agent may from time to
time reasonably request.
Reports and financial statements required to be delivered by the
Guarantor pursuant to paragraphs (i), (ii), (iv) and (v) of this Section
5.01(i) shall be deemed to have been delivered on the date on which it
posts such reports, or reports containing such financial statements, on
its website on the Internet at xxx.xxxxxxxxxxxx.xxx or when such reports,
or reports containing such financial statements are posted on the SEC's
website at xxx.xxx.xxx; provided that it shall deliver notice that such
reports and financial statements are so available and shall deliver paper
copies of the reports and financial statements referred to in paragraphs
(i), (ii), (iv) and (v) of this Section 5.01(i) to the Agent or any Lender
who requests it to deliver such paper copies until written notice to cease
delivering paper copies is given by the Agent or such Lender.
26
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Guarantor
will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect to
any of its properties, whether now owned or hereafter acquired, or assign,
or permit any of its Subsidiaries to assign, any right to receive income,
other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real property or
equipment acquired or held by the Guarantor or any Subsidiary in the
ordinary course of business to secure the purchase price of such
property or equipment or to secure Debt incurred solely for the
purpose of financing the acquisition of such property or equipment,
or Liens existing on such property or equipment at the time of its
acquisition (other than any such Liens created in contemplation of
such acquisition that were not incurred to finance the acquisition
of such property) or extensions, renewals or replacements of any of
the foregoing for the same or a lesser amount, provided, however,
that no such Lien shall extend to or cover any properties of any
character other than the real property or equipment being acquired
and fixed improvements thereon or accessions thereto, and no such
extension, renewal or replacement shall extend to or cover any
properties not theretofore subject to the Lien being extended,
renewed or replaced,
(iii) the Liens existing on the Effective Date and described
on Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Guarantor or any
Subsidiary of the Guarantor or becomes a Subsidiary of the
Guarantor; provided that such Liens were not created in
contemplation of such merger, consolidation or acquisition and do
not extend to any assets other than those of the Person so merged
into or consolidated with the Guarantor or such Subsidiary or
acquired by the Guarantor or such Subsidiary,
(v) Liens securing Debt permitted by Section 5.02(d)(vii),
(vi) Liens granted by Subsidiaries of the Guarantor (other
than the Borrowers) to secure Debt permitted by Section 5.02(d)(iv),
and
(vii) other Liens securing Debt, provided that the aggregate
principal amount of such secured Debt shall not exceed 15% of the
Consolidated net worth of the Guarantor and its Subsidiaries at any
time.
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in
a series of transactions) all or substantially all of its assets (whether
now owned or hereafter acquired) to, any Person, or permit any of the
Borrowers to do so.
(c) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally accepted
accounting principles.
(d) Subsidiary Debt. Permit any of its Subsidiaries to create or
suffer to exist, any Debt other than:
(i) Debt existing on the Effective Date and described on
Schedule 5.02(d) hereto (the "Existing Debt"), and any Debt
extending the maturity of, or refunding or refinancing, in whole or
in part, the Existing Debt, provided that the principal amount of
such Existing Debt shall
27
not be increased above the principal amount thereof outstanding
immediately prior to such extension, refunding or refinancing plus
any capitalized fees incurred in connection therewith, and the
direct and contingent obligors therefor shall not be changed (other
than to release any contingent obligor), as a result of or in
connection with such extension, refunding or refinancing,
(ii) accrued expenses and trade payables incurred in the
ordinary course of business, and obligations under trade letters of
credit incurred in the ordinary course of business, which are to be
repaid in full not more than one year after the date on which such
Debt is originally incurred to finance the purchase of goods by such
Subsidiary,
(iii) obligations under letters of credit or surety bonds
incurred in the ordinary course of business in support of
obligations incurred in connection with leases, worker's
compensation, unemployment insurance and other social security
legislation,
(iv) Debt owed to the Guarantor or to a wholly owned
Subsidiary of the Guarantor,
(v) Debt of the Borrowers,
(vi) other Debt of Subsidiaries of the Guarantor which are not
organized under the laws of the United States of America, a State of
the United States of America or the District of Columbia and
substantially all of whose assets and business are located or
conducted outside the United States of America,
(vii) Debt of a Person existing at the time such Person is
merged into or consolidated with the Guarantor or any Subsidiary of
the Guarantor or becomes a Subsidiary of the Guarantor; provided
that such Debt was not created in contemplation of such merger,
consolidation or acquisition, provided further that the aggregate
principal amount of the Debt referred to in this clause (iv) shall
not exceed $50,000,000 at any time outstanding,
(viii) (x) Debt consisting of any guaranty made by any
Subsidiary of the Guarantor in respect of Debt of any Loan Party,
provided that such Subsidiary shall have entered into a guaranty of
the Debt of the Guarantor under this Agreement in form and substance
reasonably satisfactory to the Required Lenders and (y) Debt
constituting guaranties of the Debt of the Guarantor under this
Agreement, and
(ix) indorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of
business.
(e) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business as
carried on at the date hereof and other reasonably related businesses or
businesses reasonably incidental thereto.
(f) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or
arrangement limiting the ability or any of its Subsidiaries to (i) pay
dividends or make any other distributions on its capital stock or any
other interest or participation in its profits owned by the Guarantor or
any of its Subsidiaries, or pay any Debt owed to the Guarantor or any of
its Subsidiaries, (ii) make loans or advances to the Guarantor or (iii)
transfer any of its properties or assets to the Guarantor, except for such
agreements or arrangements existing under or by reason of (x) applicable
law, (y) this Agreement and (z) customary provisions restricting
subletting or assignment of any lease governing a leasehold interest of a
Subsidiary of the Guarantor.
SECTION 5.03. Financial Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Guarantor
will:
28
(a) Leverage Ratio. Maintain a ratio of Consolidated Debt for
Borrowed Money of the Guarantor and its Subsidiaries to Consolidated
EBITDA of the Guarantor and its Subsidiaries for the four quarters most
recently ended of not greater than 3.0 to 1.
(b) Interest Coverage Ratio. Maintain a ratio of Consolidated EBITDA
of the Guarantor and its Subsidiaries for the four quarters most recently
ended to interest payable on, and amortization of debt discount in respect
of, all Debt during such period by the Guarantor and its Subsidiaries of
not less than 5.0 to 1.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Advance when
the same becomes due and payable; or any Borrower shall fail to pay any
interest on any Advance or make any other payment of fees or other amounts
payable under this Agreement or any Note within three Business Days after
the same becomes due and payable; or
(b) Any representation or warranty made by the Guarantor herein or
by any Loan Party (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect when
made; or
(c) (i) The Guarantor shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d), (e), (h) or (i), 5.02
or 5.03, or (ii) any Loan Party shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its part to be
performed or observed if such failure shall remain unremedied for 30 days
after written notice thereof shall have been given to the Guarantor by the
Agent or any Lender; or
(d) The Guarantor or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal or notional amount of at least $100,000,000 in the aggregate
(but excluding Debt outstanding hereunder) of the Guarantor or such
Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Debt; or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall continue after
the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt; or any such Debt
shall be declared to be due and payable, or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each case
prior to the stated maturity thereof; or
(e) The Guarantor or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against the Guarantor or any of its Subsidiaries seeking to adjudicate it
a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee, custodian
or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain
undismissed or unstayed for a period of 60 days, or any of the actions
29
sought in such proceeding (including, without limitation, the entry of an
order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part of
its property) shall occur; or the Guarantor or any of its Subsidiaries
shall take any corporate action to authorize any of the actions set forth
above in this subsection (e); or
(f) Judgments or orders for the payment of money in excess of
$100,000,000 in the aggregate shall be rendered against the Guarantor or
any of its Subsidiaries and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 60 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; provided, however, that any such
judgment or order shall not be an Event of Default under this Section
6.01(f) if and for so long as (i) the amount of such judgment or order is
covered by a valid and binding policy of insurance between the defendant
and the insurer covering payment thereof and (ii) such insurer, which
shall be rated at least "A" by A.M. Best Company, has been notified of,
and has not disputed the claim made for payment of, the amount of such
judgment or order; or
(g) (i) Any Person or two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities Exchange Act
of 1934), directly or indirectly, of Voting Stock of the Guarantor (or
other securities convertible into such Voting Stock) representing 30% or
more of the combined voting power of all Voting Stock of the Guarantor; or
(ii) during any period of up to 12 consecutive months, commencing after
the date of this Agreement, individuals who at the beginning of such
12-month period were directors of the Guarantor shall cease for any reason
to constitute a majority of the board of directors of the Guarantor; or
(iii) the Guarantor shall cease for any reason to own, directly or
indirectly, 100% of the Voting Stock of each of the Borrowers; or
(h) Any material provision of the Guaranty shall cease to be valid
and binding on or enforceable against the Guarantor, or the Guarantor
shall so state in writing; or
(i) The Guarantor or any of its ERISA Affiliates shall incur, or
shall be reasonably likely to incur liability in excess of $100,000,000 in
the aggregate as a result of one or more of the following: (i) the
occurrence of any ERISA Event; (ii) the partial or complete withdrawal of
the Guarantor or any of its ERISA Affiliates from a Multiemployer Plan; or
(iii) the reorganization or termination of a Multiemployer Plan;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrowers, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrowers, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by each Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to any
Loan Party under the Federal Bankruptcy Code, (A) the obligation of each Lender
to make Advances shall automatically be terminated and (B) the Advances, all
such interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by the Borrowers.
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty. The Guarantor hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due,
whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all obligations of each other Loan Party
now or hereafter existing under
30
or in respect of the this Agreement and the Notes (including, without
limitation, any extensions, modifications, substitutions, amendments or renewals
of any or all of the foregoing obligations), whether direct or indirect,
absolute or contingent, and whether for principal, interest, premiums, fees,
indemnities, contract causes of action, costs, expenses or otherwise (such
obligations being the "Guaranteed Obligations"), and agrees to pay any and all
expenses (including, without limitation, fees and expenses of outside counsel
and the allocated costs and expenses of in-house counsel) incurred by the Agent
or any Lender in enforcing any rights under this Agreement. Without limiting the
generality of the foregoing, the Guarantor's liability shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by
any other Loan Party to the Agent or any Lender under or in respect of this
Agreement and the Notes but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such other Loan Party.
SECTION 7.02. Guaranty Absolute. The Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the Notes, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Agent or any Lender with respect thereto. This Guaranty is an
absolute and unconditional guaranty of payment when due, and not of collection,
by the Guarantor of the Guaranteed Obligations. The obligations of the Guarantor
under or in respect of this Guaranty are independent of the Guaranteed
Obligations or any other obligations of any other Loan Party under or in respect
of this Agreement and the Notes, and a separate action or actions may be brought
and prosecuted against the Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against any Borrower or whether any Borrower is
joined in any such action or actions. The liability of the Guarantor under this
Guaranty shall be irrevocable, absolute and unconditional irrespective of, and
the Guarantor hereby irrevocably waives any defenses it may now have or
hereafter acquire in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any provision of this
Agreement or any Note or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
obligations of any Borrower under or in respect of this Agreement or the
Notes, or any other amendment or waiver of or any consent to departure
from this Agreement or the Notes, including, without limitation, any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to any Borrower or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of, or consent
to departure from, any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any manner of application of collateral, or proceeds thereof, to
all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Guaranteed Obligations
or any other obligations of any Loan Party under this Agreement or the
Notes or any other assets of any Borrower or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Borrower or any of its Subsidiaries;
(f) any failure of the Agent or any Lender to disclose to the
Guarantor any information relating to the business, condition (financial
or otherwise), operations, performance, properties or prospects of any
Borrower now or hereafter known to the Agent or such Lender (the Guarantor
waiving any duty on the part of the Agent and the Lenders to disclose such
information);
(g) the failure of any other Person to execute or deliver any other
guaranty or agreement or the release or reduction of liability of the
Guarantor or other guarantor or surety with respect to the Guaranteed
Obligations; or
31
(h) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Agent or any Lender that might otherwise constitute
a defense available to, or a discharge of, any Loan Party or any other
guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Agent or any Lender or any other Person
upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise,
all as though such payment had not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) The Guarantor hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that the
Agent or any Lender protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Loan Party
or any other Person or any collateral.
(b) The Guarantor hereby unconditionally and irrevocably waives any
right to revoke this Guaranty and acknowledges that this Guaranty is
continuing in nature and applies to all Guaranteed Obligations, whether
existing now or in the future.
(c) The Guarantor hereby unconditionally and irrevocably waives (i)
any defense arising by reason of any claim or defense based upon an
election of remedies by the Agent or any Lender that in any manner
impairs, reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of the
Guarantor or other rights of the Guarantor to proceed against any of the
other Loan Parties, any other guarantor or any other Person or any
collateral and (ii) any defense based on any right of set-off or
counterclaim against or in respect of the obligations of the Guarantor
hereunder.
(d) The Guarantor hereby unconditionally and irrevocably waives any
duty on the part of the Agent or any Lender to disclose to the Guarantor
any matter, fact or thing relating to the business, condition (financial
or otherwise), operations, performance, properties or prospects of any
other Loan Party or any of its Subsidiaries now or hereafter known by the
Agent or such Lender.
(e) The Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated
by this Agreement and that the waivers set forth in Section 7.02 and this
Section 7.03 are knowingly made in contemplation of such benefits.
SECTION 7.04. Subrogation. The Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against any Borrower or any other insider guarantor that arise from the
existence, payment, performance or enforcement of the Guarantor's obligations
under or in respect of this Guaranty, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution or indemnification and
any right to participate in any claim or remedy of the Agent or any Lender
against any Borrower or any other insider guarantor or any collateral, whether
or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive from
any Borrower or any other insider guarantor, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right, unless and until all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash and the Commitments shall have expired or been terminated.
If any amount shall be paid to the Guarantor in violation of the immediately
preceding sentence at any time prior to the later of the payment in full in cash
of the Guaranteed Obligations and all other amounts payable under this Guaranty
and the Termination Date, such amount shall be received and held in trust for
the benefit of Agent and the Lenders, shall be segregated from other property
and funds of the Guarantor and shall forthwith be paid or delivered to the Agent
in the same form as so received (with any necessary endorsement or assignment)
to be credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of this Agreement, or to be held as collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty
32
thereafter arising. If (i) the Guarantor shall make payment to the Agent or any
Lender of all or any part of the Guaranteed Obligations, (ii) all of the
Guaranteed Obligations and all other amounts payable under this Guaranty shall
have been paid in full in cash and (iii) the Termination Date shall have
occurred with respect to all Lenders, the Agent and the Lenders will, at the
Guarantor's request and expense, execute and deliver to the Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to the Guarantor of an
interest in the Guaranteed Obligations resulting from such payment made by the
Guarantor pursuant to this Guaranty.
SECTION 7.05. Subordination. The Guarantor hereby subordinates any
and all debts, liabilities and other obligations owed to the Guarantor by each
other Loan Party (the "Subordinated Obligations") to the Guaranteed Obligations
to the extent and in the manner hereinafter set forth in this Section 7.05:
(a) Prior Payment of Guaranteed Obligations. In any proceeding under
any Bankruptcy Law relating to any other Loan Party, the Guarantor agrees
that the Agent and the Lenders shall be entitled to receive payment in
full in cash of all Guaranteed Obligations (including all interest and
expenses accruing after the commencement of a proceeding under any
Bankruptcy Law, whether or not constituting an allowed claim in such
proceeding ("Post Petition Interest")) before the Guarantor receives
payment of any Subordinated Obligations.
(b) Turn-Over. After the occurrence and during the continuance of
any Event of Default under Section 6.01(e), the Guarantor shall, if the
Agent so requests, collect, enforce and receive payments on account of the
Subordinated Obligations as trustee for the Agent and the Lenders and
deliver such payments to the Agent on account of the Guaranteed
Obligations (including all Post Petition Interest), together with any
necessary endorsements or other instruments of transfer, but without
reducing or affecting in any manner the liability of the Guarantor under
the other provisions of this Guaranty.
(c) Agent Authorization. After the occurrence and during the
continuance of any Event of Default under Section 6.01(e), the Agent is
authorized and empowered (but without any obligation to so do), in its
discretion, (i) in the name of the Guarantor, to collect and enforce, and
to submit claims in respect of, Subordinated Obligations and to apply any
amounts received thereon to the Guaranteed Obligations (including any and
all Post Petition Interest), and (ii) to require the Guarantor (A) to
collect and enforce, and to submit claims in respect of, Subordinated
Obligations and (B) to pay any amounts received on such obligations to the
Agent for application to the Guaranteed Obligations (including any and all
Post Petition Interest).
SECTION 7.06. Continuing Guaranty; Assignments. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until the
later of the payment in full in cash of the Guaranteed Obligations and all other
amounts payable under this Guaranty and the Termination Date, (b) be binding
upon the Guarantor, its successors and assigns and (c) inure to the benefit of
and be enforceable by the Agent and the Lenders and their successors,
transferees and assigns. Without limiting the generality of clause (c) of the
immediately preceding sentence, any Lender may assign or otherwise transfer all
or any portion of its rights and obligations under this Agreement (including,
without limitation, all or any portion of its Commitments, the Advances owing to
it and the Note or Notes held by it) to any other Person, and such other Person
shall thereupon become vested with all the benefits in respect thereof granted
to such Lender herein or otherwise, in each case as and to the extent provided
in Section 9.07. The Guarantor shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of each of
the Lenders.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Lender hereby appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental
33
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the Notes), the
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding upon all Lenders and all holders
of Notes; provided, however, that the Agent shall not be required to take any
action that exposes the Agent to personal liability or that is contrary to this
Agreement or applicable law. The Agent agrees to give to each Lender prompt
notice of each notice given to it by any Loan Party pursuant to the terms of
this Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the Lender that made any Advance as the holder of the Debt resulting therefrom
until the Agent receives and accepts an Assumption Agreement entered into by an
Assuming Lender as provided in Section 2.17 or an Assignment and Acceptance
entered into by such Lender, as assignor, and an Eligible Assignee, as assignee,
as provided in Section 9.07; (ii) may consult with legal counsel (including
counsel for the Loan Parties), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance, observance or satisfaction of any of the terms, covenants or
conditions of this Agreement on the part of any Loan Party or the existence at
any time of any Default or to inspect the property (including the books and
records) of any Loan Party; (v) shall not be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; and (vi) shall incur no liability under or in respect of this Agreement
by acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier or telegram) believed by it to be genuine and signed
or sent by the proper party or parties.
SECTION 8.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and any Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Guarantor, any of its Subsidiaries and any Person who may do business with or
own securities of the Guarantor or any such Subsidiary, all as if Citibank were
not the Agent and without any duty to account therefor to the Lenders. The Agent
shall have no duty to disclose information obtained or received by it or any of
its Affiliates relating to the Guarantor or its Subsidiaries to the extent such
information was obtained or received in any capacity other than as Agent.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Agent or any other Lender
and based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 8.05. Indemnification. The Lenders agree to indemnify the
Agent (to the extent not reimbursed by the Borrowers), ratably according to the
respective principal amounts of the Advances then owed to each of them (or if no
Advances are at the time outstanding, ratably according to the respective
amounts of their Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by the Agent under this
Agreement (collectively, the "Indemnified Costs"), provided that no Lender shall
be liable for any portion of the Indemnified Costs resulting from the Agent's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender agrees to reimburse the Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including reasonable counsel fees) incurred
by the Agent in connection with the
34
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Agent is not reimbursed for such expenses by the
Borrowers. In the case of any investigation, litigation or proceeding giving
rise to any Indemnified Costs, this Section 8.05 applies whether any such
investigation, litigation or proceeding is brought by the Agent, any Lender or a
third party.
SECTION 8.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrowers and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent from among the Lenders with the consent, so long as no Event of
Default has occurred and is continuing, of the Guarantor, which consent will not
be unreasonably withheld or delayed. If no successor Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Agent, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent, which shall be a Lender that
is a commercial bank organized under the laws of the United States of America or
of any State thereof and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article VIII shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
SECTION 8.07. Other Agents. Each Lender hereby acknowledges that
neither the documentation agent nor any other Lender designated as any "Agent"
on the signature pages hereof (other than the Agent) has any liability hereunder
other than in its capacity as a Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by any
Loan Party therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Required Lenders and (except for waivers or
consents by any Lender) each of the Loan Parties, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all the Lenders, do any of the following:
(a) waive any of the conditions specified in Section 3.01, (b) other than as
provided in Section 2.18, increase the Commitments of the Lenders, (c) reduce
the principal of, or interest on, the Advances or any fees or other amounts
payable hereunder, (d) postpone any date fixed for any payment of principal of,
or interest on, the Advances or any fees or other amounts payable hereunder, (e)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Advances, or the number of Lenders, that shall be required for the
Lenders or any of them to take any action hereunder, (f) reduce or limit the
obligations of the Guarantor under Section 7.01 or release the Guarantor or
otherwise limit the Guarantor's liability with respect to the obligations owing
to the Agent and the Lenders under Article VII or (g) amend this Section 9.01;
and provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Lenders required above to
take such action, affect the rights or duties of the Agent under this Agreement
or any Note.
SECTION 9.02. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including telecopier or
telegraphic communication) and mailed, telecopied, telegraphed or delivered, or
(y) as and to the extent set forth in Section 9.02(b) and (c), if to Loan
Parties, at the address of the Guarantor at Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000, Attention: Xxxx Xxxxxxx; if to any Initial Lender, at its
Domestic Lending Office specified opposite its name on Schedule I hereto; if to
any other Lender, at its Domestic Lending Office specified in the Assumption
Agreement or the Assignment and Acceptance pursuant to which it became a Lender;
and if to the Agent, at its address at Xxx Xxxxx Xxx, Xxx Xxxxxx, Xxxxxxxx
00000, Attention: Bank Loan Syndications Department; or, as to any Loan Party or
the Agent, at such other address as shall be designated by such party in a
written notice to the other parties and, as to each other party, at such other
address
35
as shall be designated by such party in a written notice to the Borrowers and
the Agent, provided that materials required to be delivered pursuant to Sections
5.01(i)(i), (ii), (iv) and (v) shall be delivered to the Agent as specified in
Section 9.02(b). All such notices and communications shall, when mailed,
telecopied or telegraphed, be effective when deposited in the mails, telecopied
or delivered to the telegraph company, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VIII shall not be
effective until received by the Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
(b) So long as Citibank or any of its Affiliates is the Agent,
materials required to be delivered pursuant to Sections 5.01(i)(i), (ii), (iv)
and (v) may be delivered to the Agent in an electronic medium in a format
acceptable to the Agent and the Lenders by e-mail at
xxxxxxxxxxxxxxx@xxxxxxxxx.xxx. The Guarantor agrees that the Agent may make such
materials, as well as any other written information, documents, instruments and
other material relating to the Guarantor, any of its Subsidiaries or any other
materials or matters relating to this Agreement, the Notes or any of the
transactions contemplated hereby, but not including any notices under Article II
(collectively, the "Communications") available to the Lenders by posting such
notices on Intralinks or a substantially similar electronic system (the
"Platform"). The Guarantor acknowledges that (i) the distribution of material
through an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution, (ii) the
Platform is provided "as is" and "as available" and (iii) neither the Agent nor
any of its Affiliates warrants the accuracy, adequacy or completeness of the
Communications or the Platform and each expressly disclaims liability for errors
or omissions in the Communications or the Platform. No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects, is made by the Agent
or any of its Affiliates in connection with the Platform.
(c) Each Lender agrees that notice to it (as provided in the next
sentence) (a "Notice") specifying that any Communications have been posted to
the Platform shall constitute effective delivery of such information, documents
or other materials to such Lender for purposes of this Agreement; provided that
if requested by any Lender the Agent shall deliver a copy of the Communications
to such Lender by email or telecopier. Each Lender agrees (i) to notify the
Agent in writing of such Lender's e-mail address to which a Notice may be sent
by electronic transmission (including by electronic communication) on or before
the date such Lender becomes a party to this Agreement (and from time to time
thereafter to ensure that the Agent has on record an effective e-mail address
for such Lender) and (ii) that any Notice may be sent to such e-mail address.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrowers agree to pay on
demand all costs and expenses of the Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agent with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under this
Agreement. The Borrowers further agree to pay on demand all costs and expenses
of the Agent and the Lenders, if any (including, without limitation, reasonable
fees and expenses of outside counsel and the allocated costs and expenses of
in-house counsel), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Agent and each Lender in
connection with the enforcement of rights under this Section 9.04(a).
(b) The Borrowers agree to indemnify and hold harmless the Agent and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by or
asserted or awarded against any Indemnified Party, in each
36
case arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances or (ii) the actual or alleged presence of hazardous
materials on any property of the Guarantor or any of its Subsidiaries or any
Environmental Action relating in any way to the Guarantor or any of its
Subsidiaries, except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 9.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, equityholders or
creditors or an Indemnified Party or any other Person, whether or not any
Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. The Loan Parties also agree
not to assert any claim for special, indirect, consequential or punitive damages
against the Agent, any Lender, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys and agents, on any theory
of liability, arising out of or otherwise relating to the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by any Borrower to or for the account of a Lender (i) other
than on the last day of the Interest Period for such Advance, as a result of a
payment or Conversion pursuant to Section 2.07, 2.09 or 2.11, acceleration of
the maturity of the Notes pursuant to Section 6.01 or for any other reason, or
by an Eligible Assignee to a Lender other than on the last day of the Interest
Period for such Advance upon an assignment of rights and obligations under this
Agreement pursuant to Section 9.07 as a result of a demand by the Guarantor
pursuant to Section 9.07(a) or (ii) as a result of a payment or Conversion
pursuant to Section 2.07, 2.09 or 2.11, the Borrower of such Advance shall, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion, including, without limitation, any
loss (including loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in Sections 2.10, 2.13 and 9.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of any Loan Party against any and
all of the obligations of such Loan Party now or hereafter existing under this
Agreement and any Note held by such Lender, whether or not such Lender shall
have made any demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify the
applicable Loan Party after any such set-off and application, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its Affiliates under this Section are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender and its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective
(other than Section 2.01, which shall only become effective upon satisfaction of
the conditions precedent set forth in Section 3.01) when it shall have been
executed by each Loan Party and the Agent and when the Agent shall have been
notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Loan Parties,
the Agent and each Lender and their respective successors and assigns and each
Indemnified Party, except that no Loan Party shall have the right to assign its
rights hereunder or any interest herein without the prior written consent of
each of the Lenders.
37
SECTION 9.07. Assignments and Participations. (a) Each Lender may
and, if demanded by the Guarantor (following a demand by such Lender pursuant to
Section 2.10 or 2.13) upon at least five Business Days' notice to such Lender
and the Agent, will assign to one or more Persons all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it and the Note or Notes held
by it); provided, however, that (i) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations under this
Agreement, (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof unless the Guarantor and the
Agent otherwise agree, (iii) each such assignment shall be to an Eligible
Assignee, (iv) each such assignment made as a result of a demand by the
Guarantor pursuant to this Section 9.07(a) shall be arranged by the Guarantor
after consultation with the Agent and shall be either an assignment of all of
the rights and obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments that together cover all of the
rights and obligations of the assigning Lender under this Agreement, (v) no
Lender shall be obligated to make any such assignment as a result of a demand by
the Guarantor pursuant to this Section 9.07(a) unless and until such Lender
shall have received one or more payments from either the Borrowers or one or
more Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender under this Agreement and (vi) the parties
to each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note subject to such assignment and a processing and recordation fee of
$3,500, payable by the parties to each such assignment, provided, however, that
in the case of each assignment made as a result of a demand by the Guarantor,
such recordation fee shall be payable by the Guarantor except that no such
recordation fee shall be payable in the case of an assignment made at the
request of the Guarantor to an Eligible Assignee that is an existing Lender.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (other than its rights under Section 2.10, 2.13 and 9.04
to the extent any claim thereunder relates to an event arising prior such
assignment) and be released from its obligations (other than its obligations
under Section 8.05 to the extent any claim thereunder relates to an event
arising prior to such assignment) under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any Loan
Party or the performance or observance by any Loan Party of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
38
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice
thereof to the Borrowers.
(d) The Agent shall maintain at its address referred to in Section
9.02 a copy of each Assumption Agreement and each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lenders and the Commitment of, and principal amount of the
Advances owing to, each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and each Loan Party, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
any Loan Party or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or
other entities (other than the Guarantor or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to it
and any Note or Notes held by it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitment
to the Borrowers hereunder) shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) such Lender shall remain the holder of any such Note for
all purposes of this Agreement, (iv) the Borrowers, the Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
(v) no participant under any such participation shall have any right to approve
any amendment or waiver of any provision of this Agreement or any Note, or any
consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Advances or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, or postpone any date fixed for any payment
of principal of, or interest on, the Advances or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation, or
reduce or limit the obligations of the Guarantor under Section 7.01 or release
the Guarantor from its obligations under Article VII.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Guarantor furnished to such Lender
by or on behalf of the Guarantor; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Guarantor received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and any Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 9.08. Confidentiality. Neither the Agent nor any Lender
shall disclose any Confidential Information to any other Person without the
consent of the Guarantor, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and, as
contemplated by Section 9.07(f), to actual or prospective assignees and
participants, and then only on a confidential basis, (b) as required by any law,
rule or regulation or judicial process, (c) as requested or required by any
state, federal or foreign authority or examiner regulating banks or banking and
(d) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder.
SECTION 9.09. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 9.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be
39
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page
to this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.11. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. The Loan Parties hereby agree that service of process in
any such action or proceeding brought in the any such New York State court or in
such federal court may be made upon the Guarantor at its offices at Xxx Xxxx
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 Attention: General Counsel and the
Loan Parties hereby irrevocably appoint the Guarantor its authorized agent to
accept such service of process, and agrees that the failure of the Guarantor to
give any notice of any such service shall not impair or affect the validity of
such service or of any judgment rendered in any action or proceeding based
thereon. Each Loan Party hereby further irrevocably consents to the service of
process in any action or proceeding in such courts by the mailing thereof by any
parties hereto by registered or certified mail, postage prepaid, to such Loan
Party at its address specified pursuant to Section 9.02. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 9.12. Patriot Act. Each Lender hereby notifies the Guarantor
and each the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it
is required to obtain, verify and record information that identifies each
borrower, guarantor or grantor (the "Loan Parties"), which information includes
the name and address of each Loan Party and other information that will allow
such Lender to identify such Loan Party in accordance with the Act.
40
SECTION 9.13. Waiver of Jury Trial. Each of the Loan Parties, the
Agent and the Lenders hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
OMNICOM FINANCE INC., as Borrower
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Title: Director & Treasurer
OMNICOM CAPITAL INC., as Borrower
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Title: President & CEO
OMNICOM FINANCE PLC., as Borrower
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Title: Director
By: /s/ A. Phipkin
----------------------------------
Title: Director of Finance and Operations
OMNICOM GROUP INC., as Guarantor
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Title: Director
CITIBANK, N.A., as Agent
By /s/ Xxxxxxx X. Xxx
----------------------------------
Title: Vice President
41
Initial Lenders
---------------
Commitment
----------
$53,750,000 CITIBANK, N.A.
By /s/ Xxxxxxx X. Xxx
----------------------------
Title: Vice President
$53,750,000 JPMORGAN CHASE BANK
By /s/ Xxxxx X. Xxxxx
----------------------------
Title: Managing Director
$43,750,000 ABN AMRO BANK N.V.
By /s/ Xxxxxxx X. Xxxxx
----------------------------
Title: Vice President
By /s/ Xxxxx Xxxxxxxxxx
----------------------------
Title: Director
$43,750,000 HSBC BANK USA
By /s/Xxxxx Xxxxxxxxx
----------------------------
Title: Senior Vice President
Managing Agents
---------------
$37,500,000 BANK OF AMERICA, N.A.
By /s/Xxxxx X. Xxxxx
----------------------------
Title: Vice President
$37,500,000 SOCIETE GENERALE
By /s/ Xxxxxx Xxxxxx
----------------------------
Title: Director
$25,000,000 SUMITOMO MITSUI BANKING CORPORATION
By /s/ Xxxxxx X. Xxxxx, III
----------------------------
Title: Senior Vice President
$25,000,000 WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxx Xxxxxxx
----------------------------
Title: Director
42
Lenders
-------
$15,000,000 BANCO BILBAO VIZCAYA ARGENTARIA
By /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President
By /s/ Xxxxxxxx Xxxxxxxxx
-----------------------------------
Title: Vice President
$12,500,000 THE BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By /s/ Xxxxxxx Xxx
-----------------------------------
Title: Vice President
$12,500,000 BARCLAYS BANK PLC
By /s/ Xxxxxxxx Xxxx
-----------------------------------
Title: Director
$12,500,000 BNP PARIBAS
By /s/ Xxxxxx X. Xxxxxxxx XxXxxxxx
-----------------------------------
Title: Vice President
By /s/ Xxxxxxx Xxxxxx
-----------------------------------
Title: Vice President
$12,500,000 DANSKE BANK A/S
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Title: Vice President
By /s/ Xxxxx X. Xxxxxx
-----------------------------------
Title: Assistant Vice President
$12,500,000 FORTIS CAPITAL CORP.
By /s/ Xxxx Xxxxxx
-----------------------------------
Title: Vice President
By /s/ Xxxx X. Xxxxxxx
-----------------------------------
Title: Executive Vice President
$12,500,000 PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxx Xxxxx
-----------------------------------
Title: Managing Director
$12,500,000 U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxx Xxxxxxxxxx
-----------------------------------
Title: Vice President
43
$11,250,000 THE NORTHERN TRUST COMPANY
By /s/ Xxxxxxxxxxx XxXxxx
---------------------------
Title: Second Vice President
$10,000,000 XXXXX FARGO BANK
By /s/ Xxxxxxx X. Xxxxx
---------------------------
Title: Senior Vice President
$8,750,000 UBS LOAN FINANCE LLC
By /s/ Xxxxxxx Xxxxx-XxXxxxxxx
---------------------------
Title: Associate Director
By /s/ Salloz Xxxxx
---------------------------
Title: Associate Director
$7,500,000 SANPAOLO IMI S.p.A.
By /s/ Xxxxx X. Xxxxx
---------------------------
Title: Vice President
By /s/ Xxxxxx Xxxxxxxx
---------------------------
Title: General Manager
$6,250,000 ALLIED IRISH BANK
By /s/ Xxxxx Xxxxxxx
---------------------------
Title: Relationship Manager
By /s/ Xxx XxXxxxxx
---------------------------
Title: Senior Manager
$6,250,000 MIZUHO CORPORATE BANK, LTD.
By /s/ Xxxx Xxxxxxx
---------------------------
Title: Senior Vice President
$6,250,000 NORDEA BANK
By /s/ Xxxxxx X. Xxxxxxxxxx
---------------------------
Title: First Vice President
By /s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------
Title: Second Vice President
$6,250,000 RBC CENTURA BANK
By /s/ E. Xxxx Xxxxxxxxxxxx
---------------------------
Title: Market Manager
44
$6,250,000 WESTPAC BANKING CORPORATION
By /s/ Xxxx Xxxxx
---------------------------
Title: Vice President
$5,000,000 THE BANK OF NOVA SCOTIA
By /s/ Xxxx X. Xxxxxx
---------------------------
Title: Managing Director
$3,750,000 FIFTH THIRD BANK
By /s/ Xxxx Xxxxxxx
---------------------------
Title: Assistant Vice President
$500,000,000 Total of the Commitments
45
SCHEDULE I
OMNICOM GROUP
364-DAY CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
APPLICABLE LENDING OFFICES
----------------------------------------------------------------------------------------------------------------------
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
ABN Amro Bank N.V. 000 Xxxxx XxXxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000 Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxxx Xxxxxx
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
Allied Irish Banks, PLC Business Support Unit Business Support Xxxx
Xxxxxxxxxx Xxxxxxxxxx
Xxxxxxxxxxx Xxxxxx 0 Ballsbridge Dublin 4
Ireland Ireland
Attn: Xxxxxxxxxx Xxxxxxxx Attn: Xxxxxxxxxx Xxxxxxxx
T: 00 000 000-0000 T: 00 000 000-0000
F: 00 000 000-0000 F: 00 000 000-0000
----------------------------------------------------------------------------------------------------------------------
Banco Bilbao Vizcaya Argentaria 1345 Avenue of the Americas 1345 Avenue of the Americas
00xx Xxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx Attn: Xxxxxx Xxxxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
Bank of America, N.A. 0000 Xxxxxxx Xxxx., 0xx Xxxxx 0000 Xxxxxxx Xxxx., 0xx Xxxxx
Xxxxxxx, XX Xxxxxxx, XX
Attn: Xxxxx Xxxx Attn: Xxxxx Xxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
The Bank of Nova Scotia 0 Xxxxxxx Xxxxx, 00xx Xxxxx 0 Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxxx Attn: Xxxxxx Xxxxxxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
The Bank of Tokyo-Mitsubishi Trust Company 1251 Avenue of the Americas 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xx Attn: Xxxxxxx Xx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
Barclays Bank PLC 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx Attn: Xxxxx Xxxxx
T: 000 000 0000 T: 000 000 0000
F: 000 000 0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
BNP Paribas 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx Attn: Xxxxx Xxxxxxxx
T: 212 471-6630 T: 212 471-6630
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
1
----------------------------------------------------------------------------------------------------------------------
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Citibank, N.A. Two Penns Way Xxx Xxxxx Xxx
Xxx Xxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx Attn: Xxxxxxx Xxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxx X/X 000 Xxxx Xxxxxx, 00xx Xxxxx 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx Attn: Xxxxxx Xxxxxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
Fifth Third Bank 00 Xxxxxxxx Xxxxxx 00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX Cincinnati, OH
Attn: Xxx Xxxxxxx Attn: Xxx Xxxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
Fortis Capital Corp. 000 Xxxxxxx Xxxx. 000 Xxxxxxx Xxxx.
0xx Xxxxx 0xx Xxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Xxx Xxxx Attn: Xxx Xxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
HSBC Bank USA One HSBC Center 26th Floor Xxx XXXX Xxxxxx 00xx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx Attn: Xxxxx X. Xxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank One Chase Manhattan Plaza Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx Attn: Xxxxx Xxxxxxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
Mizuho Corporate Bank, Ltd. Harborside Financial Center Harborside Financial Center
1800 Plaza Ten 1800 Plaza Ten
Jersey City, NJ 07311-4098 Xxxxxx Xxxx, XX 00000-0000
Attn: Xxxxxx Xxxxx-Xxxxxxx Attn: Xxxxxx Xxxxx-Xxxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
Nordea Bank Finland Plc 000 Xxxxxxx Xxxxxx, 21st floor 000 Xxxxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx Attn: Xxxxx Xxxxx
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
----------------------------------------------------------------------------------------------------------------------
The Northern Trust Company 00 Xxxxx XxXxxxx Xxxxxx 00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx Attn: Xxxxxx Xxxxx
T: 000 000-0000 T: 000 000-0000
F: 312 630-1566 F: 312 630-1566
----------------------------------------------------------------------------------------------------------------------
PNC Bank, National Association 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx Attn: Xxxxx Xxxxxxx
T: 000 000-0000 T: 412 766-6214
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
2
----------------------------------------------------------------------------------------------------------------------
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
RBC Centura Bank 000 Xxxxxxxxxx Xxxx 000 Xxxxxxxxxx Xxxx
0xx Xxxxx 0xx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx Attn: Xxxx Xxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
SANPAOLO IMI S.p.A. 000 Xxxx Xxxxxx, 00xx Xxxxx 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx Attn: Xxxxx Xxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
Scotiabank Europe plc Scotia House Scotia House
00 Xxxxxxxx Xxxxxx 00 Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxx
XX0X 0XX XX0X 0XX
Attn: Xxxxxx Xxxx / Xxx Xxxxx Attn: Xxxxxx Xxxx / Xxx Xxxxx
T: 00 44 20 7826 5869 / 5633 T: 00 44 20 7826 5869 / 5633
F: 00 44 20 7826 5617 F: 00 44 20 7826 5617
----------------------------------------------------------------------------------------------------------------------
Societe Generale 0000 Xxxx Xxxxxx 0000 Xxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxxx Hooves Attn: Xxxxx Hooves
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
Sumitomo Mitsui Banking Corporation 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx Attn: Xxxxx Xxxxx
F: 212 224-4384 F: 212 224-4384
----------------------------------------------------------------------------------------------------------------------
UBS Loan Finance LLC 000 Xxxxxxxxxx Xxxx. 000 Xxxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx Attn: Xxxxx Xxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
U.S. Bank National Association 000 Xxxx Xxxxxxxxx Xxxxxx 000 Xxxx Xxxxxxxxx Xxxxxx
Mail Code MK-WI-TGCB Mail Code MK-WI-TGCB
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxxx Attn: Xxxx Xxxxxxxxxx
T: 000 000-0000 T: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
Wachovia Bank, National Association 000 Xxxxx Xxxxxxx Xxxxxx, CP-17 000 Xxxxx Xxxxxxx Xxxxxx, XX-00
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxxx Xxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
Xxxxx Fargo Bank 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
XXX X0000-000 MAC X0000-000
Xxx Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx Attn: Xxxxx Xxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
----------------------------------------------------------------------------------------------------------------------
Westpac Banking Corporation 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxx 0000 Xxxxxx, Xxxxxxxxx 0000
Attn: Loan Operations Attn: Loan Operations
F: 011 44 207 621-7608 F: 011 44 207 621-7608
----------------------------------------------------------------------------------------------------------------------
3
SCHEDULE 3.01(b)
DISCLOSED LITIGATION
Beginning on June 13, 2002, several proposed class actions were filed against
Omnicom Group Inc. ("OGI") and certain of OGI's senior executives in the United
States District Court for the Southern District of New York. The actions have
since been consolidated under the caption In re Omnicom Group Inc. Securities
Litigation, No. 02-CV4483 (RCC) on behalf of a proposed class of purchasers of
OGI's common stock between February 20, 2001 and June 11, 2002. The consolidated
amended complaint alleges among other things that OGI's public filings and other
public statements during that period contained false and misleading statements
or omitted to state material information relating to (1) OGI's calculation of
the organic growth component of period-to-period revenue growth, (2) OGI's
valuation of certain internet investments made by OGI's Communicade Group, which
OGI contributed to Seneca Investments LLC in 2001, and (3) the existence and
amount of certain contingent future obligations in respect of acquisitions. The
complaint seeks an unspecified amount of compensatory damages plus costs and
attorneys' fees. Defendants have moved to dismiss the complaint. The court has
not yet decided the motion. Discovery has not yet commenced in this proceeding.
In addition to the proceedings described above, a shareholder derivative action
was filed on June 28, 2002 in New York State Court in New York City by a
plaintiff shareholder, purportedly on OGI's behalf, alleging breaches of
fiduciary duty, disclosure failures, abuse of control and gross mismanagement in
connection with the formation of Seneca Investments LLC, including as a result
of open-market sales of OGI's common shares by OGI's chairman and two former
employee directors. The complaint seeks the imposition of a constructive trust
on profits received in the stock sales, an unspecified amount of money damages
and attorneys' fees and other costs. A motion has been filed to dismiss this
action. Subsequently, the parties agreed to stay further proceedings in this
case pending additional developments in the class action cases described above.
Management presently expects to defend these cases vigorously. Currently, OGI is
unable to determine the outcome of these cases and the effect on OGI's financial
position or results of operations. The outcome of any of these matters is
inherently uncertain and may be affected by future events.
SCHEDULES 5.02(a) AND 5.02(d)
EXISTING LIENS AND EXISTING DEBT
Amount Due
Subsidiary Borrower Lender(s) Each Lender Total Debt
------------------- --------- ----------- ----------
DAS Xxxxxxxxxx Citizens Leasing Corp. 256,643
CIT Group 165,688
BankNorth 154,982 577,293
DAS Xxxxxxxxx-Xxxxxxx JTA 1,573
SBC Capital Inc. 4,030 5,603
DAS Xxxxx Xxxxxxxx NEC Leasing 14,680
Bank of Tokyo Mitsubishi 479,350
Daimler Chrysler 16,140 510,170
DAS GMR Key Corporate Financial 113,370 113,370
DAS GPC Domestic Lucent 14,228
Xerox 9,717 23,945
DAS Xxxxxxxx Xerox 29,563 29,563
DAS Interbrand Corp. Key Equipment Finance 130,713 130,713
DAS Xxxxxxxx Media Group Inc. NTFC Capital 18,204 18,204
DAS National In-Store Advanta 7,533
Chesterfield 3,997
USBancorp 55,201
LPI 4,144
Safeline 6,380 77,255
DAS Xxxxxx Xxxxxxx Steelcase 57,122
NEC Leasing 17,815 74,937
DAS The Promotion Network GMAC 44,005 44,055
DAS TPG Newcourt Leasing 46,244
Copelco Capital 16,549
Xxxxx Fargo 11,154
Citicorp 15,618 89,545
DAS U30 Group Dryad 16,289 16,289
OMG Organic Xxxxx Fargo 4,666
Neopost 2,389 7,055
Cardinia Real Estate Osprey House 17,044,598 17,044,598
----------- -----------
TOTAL $18,748,289 $18,748,289
=========== ===========
Omnicom Group Inc. has three zero coupon convertible bonds
outstanding maturing in 2031, 2032 and 2033. The principal amounts outstanding
for each of these bonds are $847,031,000, $892,273,000 and $600,000,000,
respectively. In addition, Omnicom Group Inc. has a 5.20% Euro-denominated note
with a principal amount outstanding of (euro)152,449,017.
EXHIBIT A - FORM OF
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, [OMNICOM FINANCE INC., a
Delaware corporation][OMNICOM CAPITAL INC., a Connecticut corporation][OMNICOM
FINANCE PLC, a corporation organized under the laws of England and Wales], (the
"Borrower"), HEREBY PROMISES TO PAY to the order of _________________________
(the "Lender") for the account of its Applicable Lending Office on the later of
the Termination Date and the date designated pursuant to Section 2.05 of the
Credit Agreement (each as defined in the Credit Agreement referred to below) the
principal sum of U.S.$[amount of the Lender's Commitment in figures] or, if
less, the aggregate principal amount of the Advances made by the Lender to the
Borrower pursuant to the 364-Day Credit Agreement dated as of May 24, 2004 among
the Borrowers referred to therein (including the undersigned), the Lender and
certain other lenders parties thereto, Citigroup Global Markets Inc. and X.X.
Xxxxxx Securities Inc., as lead arrangers and book managers, ABN AMRO Bank N.V.,
as syndication agent, JPMorgan Chase Bank and HSBC Bank USA, as documentation
agents, and Citibank, N.A., as Agent for the Lender and such other lenders (as
amended or modified from time to time, the "Credit Agreement"; the terms defined
therein being used herein as therein defined) outstanding on such date.
The Borrower promises to pay interest on the unpaid principal amount
of each Advance from the date of such Advance until such principal amount is
paid in full, at such interest rates, and at such times, as are specified in the
Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, as Agent, at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, in same day funds. Each Advance owing to the Lender by the
Borrower pursuant to the Credit Agreement, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Promissory
Note.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, (i) provides for the making of Advances by the Lender to the
Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Advance being evidenced by this Promissory
Note and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
[OMNICOM FINANCE INC.]
[OMNICOM CAPITAL INC.]
[OMNICOM FINANCE PLC]
By _________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
------------------------------------------------------------------------------------------------------------------
Amount of
Date Amount of Principal Paid Unpaid Principal Notation
Advance or Prepaid Balance Made By
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
2
EXHIBIT B - FORM OF NOTICE OF
BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, [Omnicom Finance Inc.][Omnicom Capital
Inc.][Omnicom Finance plc], (the "Borrower"), refers to the 364-Day Credit
Agreement, dated as of May 24, 2004 (as amended or modified from time to time,
the "Credit Agreement", the terms defined therein being used herein as therein
defined), among the Borrowers referred to therein (including the undersigned),
certain Lenders parties thereto, Citigroup Global Markets Inc. and X.X. Xxxxxx
Securities Inc., as lead arrangers and book managers, ABN AMRO Bank N.V., as
syndication agent, JPMorgan Chase Bank and HSBC Bank USA, as documentation
agents, and Citibank, N.A., as Agent for said Lenders, and hereby gives you
notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is _______________,
200_.
(ii) The Type of Advances comprising the Proposed Borrowing is [Base
Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$_______________.
[(iv) The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Borrowing is _____ month[s]. [If nine is
selected, specify alternate Interest Period of one, two, three or six
months.]]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01 of
the Credit Agreement (except the representations set forth in the last
sentence of subsection (e) thereof and in subsection (f)(i) thereof) are
correct, before and after giving effect to the Proposed Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date; and
(B) no event has occurred and is continuing, or would result from
such Proposed Borrowing or from the application of the proceeds therefrom,
that constitutes a Default.
Very truly yours,
[OMNICOM FINANCE INC.]
[OMNICOM CAPITAL INC.]
[OMNICOM FINANCE PLC]
By ___________________
Title:
2
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Credit Agreement dated as of May
24, 2004 (as amended or modified from time to time, the "Credit Agreement")
among Omnicom Finance Inc., Omnicom Capital Inc. and Omnicom Finance plc (the
"Borrowers"), Omnicom Group Inc. (the "Guarantor"), the Lenders (as defined in
the Credit Agreement), Citigroup Global Markets Inc. and X.X. Xxxxxx Securities
Inc., as lead arrangers and book managers, ABN AMRO Bank N.V., as syndication
agent, JPMorgan Chase Bank and HSBC Bank USA, as documentation agents, and
Citibank, N.A., as agent for the Lenders (the "Agent"). Terms defined in the
Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof equal to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Agreement. After giving
effect to such sale and assignment, the Assignee's Commitment and the amount of
the Advances owing to the Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Note[, if any] held by the Assignor [and requests that the
Agent exchange such Note for a new Note payable to the order of [the Assignee in
an amount equal to the Commitment assumed by the Assignee pursuant hereto or new
Notes payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto and] the Assignor in an amount equal to
the Commitment retained by the Assignor under the Credit Agreement,
[respectively,] as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will perform
in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (vi)
attaches any U.S. Internal Revenue Service or U.K. Inland Revenue forms required
under Section 2.13 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after
the Effective Date, the Agent shall make all payments under the Credit Agreement
and the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and facility fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
2
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: $______
Aggregate outstanding principal amount of Advances assigned: $______
Principal amount of Note payable to Assignee: $______
Principal amount of Note payable to Assignor: $______
Effective Date*: _______________, 200_
[NAME OF ASSIGNOR], as Assignor
By ____________________________
Title:
Dated: _______________, 200_
[NAME OF ASSIGNEE], as Assignee
By ____________________________
Title:
Dated: _______________, 200_
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
----------
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
3
Accepted [and Approved]** this
__________ day of _______________, 200_
CITIBANK, N.A., as Agent
By ____________________________________
Title:
[Approved this __________ day
of _______________, 200_
OMNICOM GROUP INC.
By ____________________________________]*
Title:
----------
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
* Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
4
EXHIBIT D-1 - FORM OF
OPINION OF NEW YORK COUNSEL
FOR THE BORROWERS
May 24, 2004
To each of the Lenders parties
to the 364-Day Credit Agreement referred to below
Omnicom Finance Inc., Omnicom Capital Inc. and Omnicom Finance plc
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(h)(iv) of
the 364-Day Credit Agreement, dated as of May 24, 2004 (the "Credit Agreement"),
by and among Omnicom Finance Inc. ("OFI"), Omnicom Capital Inc. ("OCI"), and
Omnicom Finance plc ("OFP", and, collectively with OFI and OCI, the
"Borrowers"), Omnicom Group Inc. (the "Guarantor"), the banks, financial
institutions and other institutional lenders and initial issuing banks listed on
the signature pages thereof, Citigroup Global Markets Inc. and X.X. Xxxxxx
Securities Inc., as joint lead arrangers and book managers, ABN Amro Bank N.V.,
as syndication agent, JPMorgan Chase Bank and HSBC Bank USA, as documentation
agents, and Citibank, N.A., as administrative agent (the "Agent") for the
Lenders. Capitalized terms used herein without definition are used as defined in
the Credit Agreement.
We have acted as New York counsel for the Loan Parties in connection
with the preparation, execution and delivery of the Credit Agreement.
In connection with this opinion, we have examined originals or
copies (including conformed copies) of the following documents:
(1) The Credit Agreement.
(2) The documents furnished by the Loan Parties pursuant to Article
III of the Credit Agreement (together with the Credit Agreement, the
"Credit Documents").
(3) The Certificate of Incorporation and all amendments thereto (the
"Charter") of each of OFI, OCI and the Guarantor (collectively, the "US
Loan Parties"), as certified as of a recent date by a public official of
the state of its incorporation.
(4) The by-laws and all amendments thereto (the "By-laws") of each
US Loan Party, as certified to us by each US Loan Party.
(5) A certificate of the Secretary of State of Delaware, dated May
6, 2004, attesting to the continued corporate existence and good standing
of OFI in that State as of the date thereof.
(6) A certificate of the Secretary of State of Connecticut, dated
May 7, 2004, attesting to the continued corporate existence and good
standing of OCI in that State as of the date thereof.
(7) A certificate of the Secretary of State of New York, dated May
7, 2004, attesting to the continued corporate existence and good standing
of the Guarantor in that State as of the date thereof.
In addition, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such records, instruments and other
documents, and have made such other investigations, as we have deemed relevant
and necessary as a basis for the opinions hereinafter set forth.
For the purposes hereof, we have assumed, with your permission and
without independent verification of any kind: (a) that the signatures of persons
signing all documents in connection with which this opinion is rendered are
genuine; (b) the legal capacity of all natural persons; (c) that all documents
submitted to us as originals or duplicate originals are authentic; and (d) that
all documents submitted to us as copies, whether certified or not, conform to
authentic original documents. As to questions of fact relevant to this opinion,
we have assumed, without independent investigation or verification of any kind,
the accuracy of the representations and warranties of the Loan Parties in the
Credit Agreement and have relied upon certificates and oral or written
statements and other information of public officials, and officers and
representatives of the Loan Parties. For purposes of the opinion set forth in
the paragraph numbered 1 below, we have relied solely upon copies of good
standing certificates as certified by public officials as of the dates and in
the jurisdictions listed on Annex I hereto.
In rendering the opinions expressed below, we have assumed, with
your permission and without any independent investigation or verification of any
kind, that: (i) OFP has been duly organized and is validly existing and in good
standing under the laws of its jurisdiction of incorporation and is duly
qualified in each other jurisdiction in which the conduct of its business or the
ownership of its property makes such qualification necessary; (ii) OFP has full
power and authority to execute, deliver and perform the Credit Documents to
which it is a party; (iii) the execution, delivery and performance of the Credit
Documents by OFP have been duly authorized by all requisite corporate action on
the part of OFP; (iv) the Credit Documents have been duly executed and delivered
by OFP; and (v) the execution, delivery and performance of the Credit Documents
by OFP do not and will not violate the Charter, By-laws or other organizational
documents of OFP. We have further assumed, with your permission and without any
independent investigation or verification of any kind, that the Credit Agreement
constitutes the valid and legally binding obligation of each Person party
thereto (other than the US Loan Parties and OFP), enforceable against such
Person in accordance with its terms. Furthermore, in giving the opinions set
forth in paragraphs numbered 4, 5 and 6 below, we express no opinion as to state
securities or blue sky laws.
Based upon the foregoing, and subject to the limitations set forth
herein, we are of the opinion that:
1. Each US Loan Party (i) is a validly existing corporation in good
standing under the laws of the jurisdiction of its incorporation listed on Annex
I hereto and (ii) has the corporate power and authority to own its property and
assets and to transact the business in which it is engaged.
2. Each US Loan Party has the corporate power to execute, deliver
and perform the terms and provisions of the Credit Agreement and the Notes to be
delivered by it and has taken all necessary corporate action to authorize the
execution, delivery and performance of the Credit Agreement and the Notes to be
delivered by it. Each US Loan Party has duly executed and delivered the Credit
Agreement and the Notes to be delivered by it.
3. The Credit Agreement constitutes the legal, valid and binding
obligation of each Loan Party enforceable against such Loan Party in accordance
with its terms. Each Note to be delivered by a Loan Party will constitute the
legal, valid and binding obligation of such Loan Party enforceable against such
Loan Party in accordance with its terms.
4. Neither the execution and delivery, nor the performance, by any
US Loan Party of the Credit Agreement or the Notes to be delivered by it, nor
compliance by such US Loan Party with the
2
terms and provisions thereof, (i) will contravene any provision of any law,
statute, rule or regulation (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System) of the United States of
America or the State of New York applicable to such US Loan Party or (ii) will
violate any provision of the Charter or By-Laws of such US Loan Party.
5. Neither the execution and delivery, nor the performance, by OFP
of the Credit Agreement and the Notes to be delivered by it, nor compliance by
it with the terms and provisions thereof, will contravene any provision of any
law, statute, rule or regulation (including, without limitation, Regulation X of
the Board of Governors of the Federal Reserve System) of the United States of
America or the State of New York applicable to OFP.
6. No order, consent, approval, license, authorization or validation
of, or filing, recording or registration with (except as have been obtained or
made on or prior to the date hereof), or exemption by, any governmental or
public body or authority of the United States of America, or the State of New
York, applicable to any Loan Party is required to authorize, or is required in
connection with, (i) the execution, delivery and performance by any Loan Party
of the Credit Agreement and the Notes to be delivered by it or (ii) the
enforceability of the Credit Agreement and the Notes to be delivered by it in
accordance with their terms against such Loan Party.
7. The choice of New York law as the governing law of the Credit
Agreement and the Notes is, under the laws of the State of New York, a valid
choice of law.
8. The consent by each Loan Party in Section 9.11 of the Credit
Agreement to the jurisdiction of courts sitting in the State of New York is a
valid consent to the jurisdiction of such courts.
Our opinions are subject to the qualifications that:
A. The enforceability of the Credit Agreement and the Notes is
subject to and may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium, or other similar laws relating to or
affecting the rights of creditors generally (including such as may deny giving
effect to waivers of debtors' or guarantors' rights), and the application of
general principles of equity (regardless of whether considered in a proceeding
in equity or at law), including, without limitation, (i) the possible
unavailability of specific performance, injunctive relief or any other equitable
remedy and (ii) concepts of materiality, reasonableness, good faith and fair
dealing. Accordingly, no opinion is given herein as to (i) the availability of
the right to accelerate any obligation and certain remedies provided for in the
Credit Agreement in the event of a nonmaterial default, or (ii) the
enforceability of any provision of the Credit Agreement relating to cumulation
of remedies or waiving the remedy of specific performance, or the waiver of
debtors' rights.
B. We express no opinion as to the enforceability of any contractual
provision in the Credit Agreement as to waiver of any procedural right,
including, without limitation, (i) the first sentence of Section 9.11(a) of the
Credit Agreement insofar as such sentence relates to the subject matter
jurisdiction of a federal court of the United States of America sitting in New
York City to adjudicate any controversy related to any of the Credit Documents,
and (ii) the waiver of inconvenient forum set forth in Section 9.11(b) of the
Credit Agreement with respect to proceedings in a federal court of the United
States of America sitting in New York City.
C. We express no opinion as to the enforceability of any contractual
provision in the Credit Documents relating to indemnification, including,
without limitation, with respect to the enforceability of Section 9.04 of the
Credit Agreement, to the extent that these may be limited (i) in the case of
litigation against any Loan Party which is decided adversely to the person
claiming indemnification or in a case involving a claim of indemnification for
attorneys' fees, (ii) by laws rendering unenforceable indemnification contrary
to federal or state securities laws and the public policy underlying such laws,
or (iii) by laws limiting the enforceability of provisions exculpating or
exempting a party, or requiring indemnification of a party, for liability for
its own action or inaction, to the extent the action or inaction involves gross
negligence, recklessness, willful misconduct or unlawful conduct.
3
D. Furthermore, no opinion is given herein as to:
(i) Section 7.02 of the Credit Agreement, to the extent that it
relates to action contemplated by Section 7.02(b) of the Credit Agreement
taken without the Guarantor's consent, which may not be enforceable to the
extent that the Guaranteed Obligations are materially altered; or
(ii) Section 7.02(h) of the Credit Agreement, to the extent it
relates to any waiver of an applicable statute of limitations; or
(iii) the enforceability of the right of setoff provided for in
Section 9.05 of the Credit Agreement (A) in respect of an interest under
the Credit Agreement purchased by a Lender pursuant to Section 2.14 or
9.07 of the Credit Agreement, to the extent the relevant purchase does not
give rise to a direct obligation of any Borrower to such Lender, or (B)
insofar as that right relates to setoff of unmatured obligations under the
Credit Agreement or of obligations owed to any Loan Party by an Affiliate
of a Lender or by an Affiliate of the Agent.
We are members of the Bar of the State of New York and express no
opinion as to the laws of any jurisdiction other than those of the laws of the
State of New York, the General Corporation Law of the State of Delaware and the
federal laws of the United States of America. Our opinions set forth in
paragraph numbers 1, 2 and 4(ii) above, as they apply to OCI, are based on our
review of the Connecticut Business Corporation Act as reported by 33 Conn. Gen.
Stat. Xxx. ss. 33-600 et seq. (West 1997, 2004 supp.) to be in effect on the
date of this opinion letter.
This opinion is rendered solely to you by us as New York counsel for
the Loan Parties in connection with the transactions contemplated by the Credit
Agreement and the Notes. Each Lender (and its successors and permitted assigns)
may rely upon this opinion in connection with those transactions. This opinion
may not be relied upon in any other manner or for any other purpose, or
furnished or relied upon by any other person, without our prior written consent.
The information set forth herein is as of the date of this letter, and we
disclaim any undertaking to advise you of changes which thereafter may be
brought to our attention.
Very truly yours,
/s/ Xxxxx Xxxxxxxxxx LLP
4
ANNEX I
Type and Date of
Name and Jurisdiction Certificate in Jurisdiction
of Incorporation of Incorporation
---------------------------------- -----------------------------
Omnicom Finance Inc. (Delaware) Good Standing - May 6, 2004
Omnicom Capital Inc. (Connecticut) Legal Existence - May 7, 2004
Omnicom Group Inc. (New York) Subsisting - May 7, 2004
ANNEX I
Name and Jurisdiction Certificate in Jurisdiction
of Incorporation of Incorporation
---------------------------------- -----------------------------
Omnicom Finance Inc. (Delaware) Good Standing - May 6, 2004
Omnicom Capital Inc. (Connecticut) Legal Existence - May 7, 2004
Omnicom Group Inc. (New York) Subsisting - May 7, 2004
EXHIBIT D-2 - FORM OF
OPINION OF ENGLISH
COUNSEL FOR OFP
To each of the Lenders parties to the Credit Agreement
referred to below and to Citibank, N.A. as Agent
Our Ref
May 2004
Dear Sirs
Omnicom Finance plc
1 Introduction
We have acted as special English lawyers for Omnicom Finance plc, a
company incorporated and existing under the laws of England and
Wales ("OFP"), in connection with its authorisation of the execution
and delivery of the following documents (together, the "Credit
Documents"):
1.1 the 364-Day Credit Agreement dated as of May 2004 made among Omnicom
Finance Inc., Omnicom Capital Inc. and OFP (collectively, the
"Borrowers"), Omnicom Group Inc. as Guarantor, the Initial Lenders
named therein, Citigroup Global Markets Inc. and X.X. Xxxxxx
Securities Inc., as lead arrangers and book managers, ABN AMRO Bank
N.V. as syndication agent, X.X. Xxxxxx Chase Bank and HSBC Bank USA
as documentation agents, and Citibank, N.A. as Administrative Agent
for the Lenders (the "Credit Agreement"); and
1.2 the Notes of OFP, if any, to be delivered pursuant to Section
2.15(a) of the Credit Agreement.
We have been asked by OFP to give you this opinion for the purposes
of Section 3.01(h)(iv) of the Credit Agreement and we have taken
instructions in this regard solely from OFP. You should be aware
that our sole involvement with this transaction has been in giving
this opinion and we have not been involved in the negotiation of the
Credit Documents or in any other aspect of the transaction.
Terms defined in the Credit Agreement have the same meanings when
used in this opinion.
2 English law opinion
This opinion is limited to English law as applied by the English
courts as at the date of this letter and is given on the basis that
it will be governed by and construed in accordance with English law.
We have made no investigation of the laws of any jurisdiction other
than those of England and we do not express or imply any opinion as
to the laws of any jurisdiction other than those of England. We
express no opinion as to matters of fact.
3 Documents examined
For the purpose of this opinion we have examined the following
documents:
3.1 a copy of the Credit Agreement (including the Exhibits thereto)
bearing a signature on behalf of OFP which is stated therein to be
that of one of the persons identified in the certificate referred to
at paragraph 3.4 below as a Director of OFP;
3.2 a copy of the certificate given by OFP pursuant to Section 3.01 (h)
(ii) and (iii) of the Credit Agreement and having attached thereto,
inter alia:
3.2.1 copies of the certificate of incorporation and Memorandum and
Articles of Association of OFP, each certified as true, complete and
up-to-date as at the date hereof by a Director of OFP; and
3.3 a copy of the minutes of a meeting of the Board of Directors of OFP
held on [ ] May 2004, the resolutions set out in such minutes having
been certified as true, complete and still in force as at the date
hereof by a Director of OFP; and
3.4 a further certificate addressed to us from a director of OFP, a copy
of which is attached hereto (the "Certificate").
4 Enquiries made
For the purpose of giving this opinion, we have:
4.1 made an oral enquiry by telephone of the Central Registry of Winding
Up Petitions in respect of OFP on [ ] May 2004; and
4.2 arranged for a review of the copy documents relating to OFP
available from the Companies House website on [ ] May 2004.
Except for the documents listed in paragraph 3 above and the matters
referred to in this paragraph 4, we have not examined any contracts
or other documents entered into by or affecting any party to the
Credit Documents nor any corporate records of OFP and we have not
made any other enquiries or searches concerning OFP.
2
5 Assumptions
In examining the documents referred to in paragraph 3 above, in
making the enquiries referred to in paragraph 4 above and in giving
this opinion we have assumed without further enquiry:
5.1 the genuineness of all signatures and seals on documents, the
conformity to the originals of all documents supplied to us as
copies and the authenticity of the originals of such documents;
5.2 that the information disclosed by our oral enquiry at the Central
Registry of Winding-up Petitions was then accurate and that such
enquiry did not fail to disclose any matters which it should have
disclosed and which are relevant for the purposes of this opinion
and since the time of such enquiry there has been no alteration in
the status or condition of OFP as represented by the Clerk at the
Registry;
5.3 that the file of records available for public inspection from the
website of Companies House concerning OFP was complete, accurate and
up-to-date at the time of the review referred to in 4.2 above and
that there has been no alteration in the status or condition of OFP
as represented thereby;
5.4 that OFP has not passed a voluntary winding-up resolution and that
no petition has been presented to or order made by a court for the
winding-up or dissolution of OFP or the appointment of an
administrator of OFP and that no receiver or administrator has been
appointed in respect of OFP or any of its assets which in any such
case has not been revealed by the enquiries referred to in paragraph
4 above;
5.5 (in relation to paragraph 6.7 only, if relevant) that each of the
parties to the Credit Documents (other than OFP) is in existence and
has full corporate capacity, right, power and authority to enter
into and to exercise its rights and perform its obligations under
the Credit Documents;
5.6 (in relation to paragraph 6.7 only, if relevant) that under the laws
of the State of New York, USA, each of the Credit Documents
constitutes valid, legally binding and enforceable obligations of
the parties thereto, including OFP;
5.7 that any copies certified and all documents dated earlier than the
date of this letter on which we have expressed reliance remain
accurate, complete and in full force and effect at the date of this
letter;
5.8 that there are no provisions of the laws of any applicable
jurisdiction outside England which would be contravened by the
execution and delivery of the Credit Documents and that, insofar as
any obligation under the Credit Documents is to be performed in any
jurisdiction outside England, its performance will not be illegal or
contrary to public policy by virtue of the laws of that
jurisdiction;
5.9 the accuracy of the statements contained in the Certificate; and
5.10 (as regards our opinions in paragraphs 6.5 and 6.6 below) that all
Advances made to OFP pursuant to the Credit Agreement will be made
by persons who are (i) authorised persons
3
(within the meaning of the Financial Services and Markets Act 2000)
who have permission to accept deposits or to effect or carry out
contracts of insurance, or (ii) acting in the course of carrying on
a business consisting wholly or to a significant extent of lending
money, or (iii) otherwise described in paragraph 6(1) of the
Financial Services and Markets Xxx 0000 (Regulated Activities) Order
2001.
6 Opinion
Based upon and subject to the foregoing, and subject to the
qualifications and reservations mentioned below and to any matters
not disclosed to us, we are of the following opinion.
6.1 OFP (i) is duly incorporated and validly existing as a public
limited company under the laws of England and Wales; (ii) has the
power and authority to own its property and assets and to transact
the business in which it is engaged (as such property, assets and
business are described in the Certificate); and (iii) is not
required to be qualified as a "foreign corporation" in order to do
business within England and Wales.
6.2 The enquiry and review referred to in paragraph 4 above did not
reveal any appointment of, or resolution or petition to appoint, a
liquidator, administrator or administrative receiver of OFP, or that
OFP is delinquent in filing its statutory annual directors' report
and accounts, or any notification by the Registrar of Companies of
intention to strike OFP's name off the Register of Companies.
6.3 OFP has the corporate power to execute, deliver and perform the
terms and provisions of each of the Credit Documents to which it is
expressed to be a party and to borrow under the Credit Agreement and
has taken all necessary corporate action to authorise the execution,
delivery and performance by it of each of such Credit Documents and
borrowing by it under the Credit Agreement.
6.4 OFP has validly executed the Credit Agreement. When the Notes are
signed by one of the Directors of OFP, such Notes will have been
validly executed by OFP.
6.5 The execution, delivery and performance by OFP of the Credit
Documents to which it is expressed to be a party, the compliance by
it with the terms and provisions thereof and the borrowing by it
under the Credit Agreement will not (i) contravene any provision of
any law, statute, rule or regulation of England and Wales or (ii)
violate any provision of the memorandum and articles of association
of OFP as currently in force.
6.6 Under English law, no order, consent, approval, licence,
authorisation or validation of, or filing, recording or registration
with, or exemption by, any governmental or public body or authority
of or in England and Wales (except such as have been obtained or
made prior to the date hereof) is required to authorise, or is
required in connection with, (i) the execution, delivery and
performance by OFP of any Credit Document to which OFP is expressed
to be a party, (ii) the borrowing by OFP under the Credit Agreement
or (iii) the enforceability of any such Credit Document against OFP.
6.7 The English courts would recognize and give effect to the choice of
the laws of the State of New York, USA, as the governing law of the
Credit Documents.
4
6.8 The submission to the jurisdiction of the courts of the State of New
York, USA, by OFP in the Credit Documents is within the corporate
powers of OFP and does not contravene any law of England.
6.9 A judgment rendered by a court in the United States has no direct
operation in England but may be enforceable by a claim or
counterclaim or be recognised by the English courts as a defence to
a claim or as conclusive of an issue in an action. For a judgment
rendered by a court in the United States to be enforced by the
English courts it would be necessary to prove to the satisfaction of
the English court that:-
(i) the United States court had jurisdiction; and
(ii) the judgment is final and conclusive on the merits; and
(iii) the judgment is for a debt or a fixed sum (not being a sum
payable in respect of taxes or other charges of a like nature
or in respect of a fine or other penalty).
For a defendant to such a claim to have a good defence to a claim or
counterclaim to enforce such a judgment, it would be necessary for
him to prove that:-
(1) the judgment was obtained by fraud; or
(2) the judgment is contrary to English public policy; or
(3) the judgment involves the enforcement of foreign public, penal
or revenue laws; or
(4) enforcement would be contrary to section 5 of the Protection
of Trading Xxxxxxxxx Xxx 0000 (which prohibits the enforcement
of (a) judgments for multiple damages; (b) judgments based on
a provision or rule of law specified by the Secretary of State
as being concerned with the prohibition or regulation of
anti-competitive arrangements or with the promotion of
competition; and (c) a judgment on a claim for a contribution
in respect of damages awarded under (a) or (b)); or
(5) the judgment was obtained in a manner opposed to the rules of
natural justice; or
(6) the judgment involves a matter previously determined by an
English court; or
(7) Recognition of the judgment is denied under section 32 of the
Civil Judgment and Jurisdiction Xxx 0000. Under section 32 a
judgment in a United States action shall not be recognised by
the English Courts if :
5
(a) the United States action is brought in breach of a
valid agreement under which the dispute in
question was to be settled otherwise than by
proceedings in the United States; and
(b) the United States action was not brought by or
with the agreement of, the person against whom the
judgment was given; and
(c) that person did not counterclaim in the United
States action or otherwise submit to the
jurisdiction of the United States court;
Except that section 32 does not apply where the agreement
under which the dispute in question was to be settled is
illegal, void, unenforceable or incapable of being performed
for reasons not attributable to the fault of the party
bringing the action.
The question of whether enforcement of a judgment is contrary to
English public policy (see (2) above) depends on the circumstances
of the transaction as a whole and the subsequent conduct of the
litigation in the United States and English proceedings. Solely on
the basis of our examination of the documents referred to in
paragraphs 3.1 to 3.3 (inclusive) above, we are not aware of any
reason why enforcement of a judgment to pay a sum of money due under
the Credit Agreement would be contrary to English public policy as
at the date of this letter.
7 Qualifications and reservations
Our opinion is subject to the following qualifications and
reservations.
7.1 We express no opinion on the effectiveness of any of the provisions
of the Credit Documents, since the Credit Documents are governed by
New York law.
7.2 The obligations of OFP under the Credit Documents will be subject to
any laws from time to time in effect relating to insolvency,
administration, bankruptcy, liquidation, reorganisation, moratorium
or similar laws affecting creditors' rights generally and we express
no opinion on such laws.
7.3 The enquiry at the Central Registry of Winding-up Petitions referred
to in paragraph 4.1 above relates only to a compulsory winding-up
and is not conclusively capable of revealing whether or not a
winding-up petition in respect of a compulsory winding-up has been
presented since details of the petition may not have been entered on
the records of the Central Registry of Winding-up Petitions
immediately or, in the case of a petition presented to a County
Court, may not have been notified to the Central Registry and
entered on such records at all, and the response to an enquiry only
relates to the period of six months prior to the date when the
enquiry was made.
7.4 The search of the Companies House website referred to in paragraph
4.2 above is not conclusively capable of revealing whether or not
certain events have occurred, including
6
the commencement of winding up or the making of an administration
order or the appointment of a receiver, administrative receiver,
administrator or liquidator, as notice of these matters may not be
filed with Companies House immediately and, when filed, may not be
available from such website immediately.
7.5 The choice of a particular law to govern an agreement or document
would not be recognised or upheld by the English Courts if the
choice of law was not bona fide and legal or if there were reasons
for avoiding the choice of law on the grounds of public policy. The
choice of a particular law would not be upheld, for example, if it
was made with the intention of evading the law of the jurisdiction
with which the contract had its most substantial connection and
which, in the absence of the chosen law, would have invalidated the
contract or been inconsistent with it. We have not made any
investigation into the bona fides of the parties to the Credit
Documents; however we are not aware of any reason for an English
Court to find that the choice of New York law to govern the Credit
Documents is not bona fide or not legal, nor are we aware of any
English public policy that would be violated by the enforcement of
the Credit Documents in accordance with their respective terms.
7.6 We have not considered the particular circumstances of any party to
the Credit Documents (save OFP to the extent expressly stated
herein) or the effect of such particular circumstances on the Credit
Documents or the transactions contemplated thereby.
7.7 English courts can give judgments in a currency other than sterling
if, subject to the terms of the contract, that currency is the
currency which most fairly expresses the plaintiff's loss.
8 Reliance
This opinion may be relied on solely by the addressees and may not
be regarded as addressed to or relied on by any other person (save
the addressees' successors and assigns) without our prior written
consent. It is strictly limited to the matters stated herein and
does not extend to, and is not to be read as extending by
implication to, any other matter in connection with the Credit
Documents.
Yours faithfully
Macfarlanes
7
