EXHIBIT 10.11
AMENDED AND RESTATED 364-DAY AGREEMENT
DATED AS OF MAY 26, 2000
TRUE NORTH COMMUNICATIONS, INC., a Delaware corporation (the
"BORROWER"), the banks, the financial institutions and other institutional
lenders (collectively, the "INITIAL LENDERS") party hereto and CITIBANK, N.A.,
as administrative agent (together with any successor thereto appointed pursuant
to Article VII of the Existing Credit Agreement referred to below, the
"ADMINISTRATIVE AGENT") for the Lenders (as defined in the Existing Credit
Agreement referred to below), hereby agree as follows:
PRELIMINARY STATEMENTS
(1) The Borrower is party to a 364-Day Credit Agreement dated
as of May 29, 1998, amended and restated as of May 27, 1999 (as further amended,
supplemented or otherwise modified from time to time to (but not including) the
date of this Amendment and Restatement, the "EXISTING CREDIT AGREEMENT") with
the banks, financial institutions and other institutional lenders party thereto
and Citibank, N.A., as Administrative Agent for the Lenders and such other
lenders. Capitalized terms not otherwise defined in this Amendment and
Restatement shall have the same meanings as specified in the Existing Credit
Agreement.
(2) The parties to this Amendment and Restatement desire to
amend the Existing Credit Agreement as set forth herein and to restate the
Existing Credit Agreement in its entirety to read as set forth in the Existing
Credit Agreement with the following amendments.
(3) The Borrower has requested that the Lenders agree to
extend credit to it from time to time in an aggregate principal amount of up to
$75,000,000 for general corporate purposes of the Borrower and its Subsidiaries
not otherwise prohibited under the terms of this Agreement. The Lenders have
indicated their willingness to agree to extend credit to the Borrower from time
to time in such amount on the terms and conditions of this Amendment and
Restatement.
SECTION 1. AMENDMENTS TO THE EXISTING CREDIT AGREEMENT. (a)
Section 1.01 of the Existing Credit Agreement is, effective as of the date of
this Amendment and Restatement and subject to the satisfaction of the conditions
precedent set forth in Section 2, hereby amended by deleting the definitions of
"COMMITMENT" and "REVOLVER TERMINATION DATE" set forth therein and replacing
them, respectively, with the following new definitions thereof:
"COMMITMENT" means, with respect to any Lender, the amount set
forth in US Dollars opposite such Lender's name on Schedule I hereto
under caption "COMMITMENT" or, if such Lender has entered into an
Assignment and Acceptance, the amount set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section
8.07(d) or, if such Lender has entered into an Assumption Agreement,
the amount set forth as the Commitment of such Lender in its Assumption
Agreement, in each case as such amount may be reduced pursuant to
Section 2.05 or increased pursuant to Section 2.16.
"REVOLVER TERMINATION DATE" means the earlier of (a) May 25,
2001, subject to the extension thereof pursuant to Section 2.17 and (b)
the date of termination in whole of the aggregate Commitments pursuant
to Section 2.05 or 6.01; PROVIDED, HOWEVER, that the Revolver
Termination Date of any Lender that is a Non-Consenting Lender to any
requested extension pursuant to Section 2.17 shall be the Revolver
Termination Date in effect immediately prior to the applicable
Extension Date for all purposes of this Agreement.
(b) Section 5.02(d)(i) of the Existing Credit Agreement
is amended in full to read as follows:
(i) Investments existing on the date of this
Agreement and any Investment in Modem Media.Xxxxx Xxxxx, Inc.
(c) Schedule I to the Existing Credit Agreement is, effective
as of the date of this Amendment and Restatement and subject to the satisfaction
of the conditions precedent set forth in Section 2, deleted in its entirety and
replaced with Schedule I to this Amendment and Restatement.
Section 2. CONDITIONS OF EFFECTIVENESS IF THIS AMENDMENT AND
RESTATEMENT. This Amendment and Restatement shall become effective as of the
date first above written (the "RESTATEMENT EFFECTIVE DATE") when and only if:
(a) The Administrative Agent shall have received counterparts
of this Amendment and Restatement executed by the Borrower and all of the
Initial Lenders or, as to any of the Initial Lenders, advice satisfactory to the
Administrative Agent that such Initial Lender has executed this Amendment and
Restatement.
(b) The Administrative Agent shall have received for the
benefit of each of the Initial Lenders a fee equal to 0.04% of the
Commitment of each Initial Lender.
(c) The Administrative Agent shall have received on or before
the Restatement Effective Date the following, each dated such date and
(unless otherwise specified below) in form and substance satisfactory
to the Administrative Agent and in sufficient copies for each Initial
Lender:
(i) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
this Amendment and Restatement and the Notes, if any, and the
other documents to be delivered hereunder by the Borrower.
(ii) A favorable opinion of the General Counsel of
the Borrower, in form and substance reasonably satisfactory to
the Agent.
(d) The representations and warranties contained in Section
4.01 of the Existing Credit Agreement shall be correct on and as of the
Restatement Effective Date, before and after giving effect to the
Restatement Effective Date, as though made on and as of such date.
(e) No event shall have occurred and be continuing, or shall
occur as a result of the occurrence of the Restatement Effective Date,
that constitutes a Default.
SECTION 3. REFERENCE TO AND EFFECT ON THE EXISTING CREDIT
AGREEMENT AND THE NOTES.
(a) On and after the effectiveness of this Amendment and
Restatement, each reference in the Existing Credit Agreement
to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Existing Credit Agreement, and each
reference in the Notes to "the Credit Agreement",
"thereunder", "thereof" or words of like import referring to
the Existing Credit Agreement, shall mean and be a reference
to the Existing Credit Agreement, as amended by this Amendment
and Restatement.
(b) The Existing Credit Agreement and the Notes, as
specifically amended by this Amendment and Restatement, are and shall
continue to be in full force and effect and are hereby in all respects
ratified and confirmed.
(c) Without limiting any of the other provisions of the
Existing Credit Agreement, as amended by this Amendment and
Restatement, any references in the Existing Credit Agreement to the
phrases "on the date hereof", "on the date of this Agreement" or words
of similar import shall mean and be a reference to the date of the
Existing Credit Agreement (which is May 29, 1998).
SECTION 4. COSTS AND EXPENSES. The Borrower agrees to pay on
demand all reasonable out-of-pocket costs and expenses of the Administrative
Agent in connection with the preparation, execution, delivery and
administration, modification and amendment of this Amendment and Restatement,
the Notes and the other documents to be delivered hereunder (including, without
limitation, the reasonable and documented fees and expenses of counsel for the
Administrative Agent with respect hereto and thereto) in accordance with the
terms of Section 8.04 of the Existing Credit Agreement.
SECTION 5. EXECUTION IN COUNTERPARTS. This Amendment and
Restatement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page
to this Amendment and Restatement by telecopier shall be effective as delivery
of a manually executed counterpart of this Amendment and Restatement.
SECTION 6. GOVERNING LAW. This Amendment and Restatement shall
be governed by, and construed in accordance with, the laws of the State of New
York.
IN WITNESS WHEREOF, the parties hereto have caused the
Amendment and Restatement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
THE BORROWER
TRUE NORTH COMMUNICATIONS INC.
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: VP & Treasurer
THE AGENT
CITIBANK, N.A.
as Administrative Agent
By /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President
THE INTIAL LENDERS
CITIBANK, N.A.
By /s/ Xxxxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President
BANK ONE, N.A. (Main Office Chicago)
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BANK OF AMERICA, N.A.
By /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
THE CHASE MANHATTAN BANK
By /s/ Xxxx Xxxxx
------------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD
CHICAGO BRANCH
By /s/ Xxxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Deputy General Manager
BANQUE NATIONALE DE PARIS
By /s/ Xxxxxx Xxxxxx du Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx du Bocage
Title: Executive VP & General Manager
THE NORTHERN TRUST COMPANY
By /s/ Xxxxxx Xxxx
------------------------------------------
Name: Xxxxxx Xxxx
Title: 2nd Vice President
FLEET BANK, N.A.
By /s/ Xxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
SCHEDULE 1 TO THE AMENDMENT AND RESTATEMENT
COMMITMENTS AND APPLICABLE LENDING OFFICES
NAME OF INITIAL EUROCURRENCY LENDING
LENDER COMMITMENT DOMESTIC LENDING OFFICE OFFICE
------------------------ ------------------------ --------------------------- ----------------------------
Citibank, NA $18,000,000 Two Penns Way, Xxxxx 000 Xxx Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxx Attn: Xxxxx Xxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Bank of America, NA $10,500,000 000 Xxxxx XxXxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx
11th Floor 11th Floor
Chicago, IL 60697 Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx Attn: Xxxx Xxxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Bank One, NA (Main $10,500,000 1 Bank Xxx Xxxxx 0 Xxxx Xxx Xxxxx
Xxxxxx Xxxxxxx) Xxxxx 0000 1-14 Suite 0088 1-14
Chicago, IL 60670 Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx Attn: Xxxxxxx Xxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
The Chase Manhattan Bank $10,500,000 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
0xx Xxxxx 0xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxx Xxx Attn: Xxx Xxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
The Bank of $7,500,000 000 Xxxxxx Xxxxxx 227 Monroe Street
Tokyo-Mitsubishi, Suite 2300 Suite 2300
Ltd., Chicago Branch Chicago, IL 60606 Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx Attn: Xxxxx Xxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Banque Nationale de $6,000,000 000 Xxxxx XxXxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Jo Xxxxx Xxxxxx Attn: Jo Xxxxx Xxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
The Northern Trust $6,000,000 00 Xxxxx XxXxxxx Xxxxxx 50 South LaSalle Street
Company Chicago, IL 60675 Xxxxxxx, XX 00000
Attn: Xxxxx Xxx Attn: Xxxxx Xxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Fleet Bank, NA $6,000,000 1185 Avenue of the Americas 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxx Attn: Xxxxxx Xxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
TOTAL OF COMMITMENTS $75,000,000
