EXHIBIT 10.2
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FIVE-YEAR CREDIT AGREEMENT
Dated as of May 29, 1998
Among
TRUE NORTH COMMUNICATIONS INC.,
as Borrower,
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and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
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and
CITIBANK, N.A.,
as Administrative Agent
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms...................................................... 1
SECTION 1.02. Computation of Time Periods................................................ 20
SECTION 1.03. Accounting Terms........................................................... 20
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances.............................................. 20
SECTION 2.02. Making the Revolving Credit Advances....................................... 21
SECTION 2.03. The Competitive Bid Advances............................................... 22
SECTION 2.04. Fees....................................................................... 25
SECTION 2.05. Termination or Reduction of the Commitments................................ 26
SECTION 2.06. Repayment of Advances...................................................... 26
SECTION 2.07. Interest on Revolving Credit Advances...................................... 26
SECTION 2.08. Interest Rate Determination and Availability............................... 27
SECTION 2.09. Optional Conversion of Revolving Credit Advances........................... 29
SECTION 2.10. Prepayments of Revolving Credit Advances................................... 29
SECTION 2.11. Increased Costs............................................................ 30
SECTION 2.12. Illegality................................................................. 31
SECTION 2.13. Payments and Computations.................................................. 32
SECTION 2.14. Taxes...................................................................... 33
SECTION 2.15. Sharing of Payments, Etc................................................... 35
SECTION 2.16. Increase in the Aggregate Commitments...................................... 36
SECTION 2.17. Substitution of Currency................................................... 37
SECTION 2.18. Use of Proceeds............................................................ 38
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03............ 38
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing.................... 39
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing..................... 40
SECTION 3.04. Conditions Precedent to Each Increase Date................................. 40
SECTION 3.05. Determinations Under Section 3.01.......................................... 41
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower............................. 41
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants...................................................... 44
SECTION 5.02. Negative Covenants......................................................... 47
SECTION 5.03. Financial Covenants........................................................ 51
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.......................................................... 52
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action................................................... 54
SECTION 7.02. Administrative Agent's Reliance, Etc....................................... 54
SECTION 7.03. Citibank and Affiliates.................................................... 55
SECTION 7.04. Lender Credit Decision..................................................... 55
SECTION 7.05. Indemnification............................................................ 56
SECTION 7.06. Successor Administrative Agent............................................. 56
SECTION 7.07. The Sub-Agent.............................................................. 57
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc............................................................ 57
SECTION 8.02. Notices, Etc............................................................... 58
SECTION 8.03. No Waiver; Remedies........................................................ 59
SECTION 8.04. Costs and Expenses......................................................... 59
SECTION 8.05. Right of Setoff............................................................ 60
SECTION 8.06. Binding Effect............................................................. 61
SECTION 8.07. Assignments and Participations............................................. 61
SECTION 8.08. Confidentiality............................................................ 65
SECTION 8.09. Governing Law.............................................................. 65
SECTION 8.10. Execution in Counterparts.................................................. 65
SECTION 8.11. Judgment................................................................... 65
SECTION 8.12. Jurisdiction, Etc.......................................................... 66
SECTION 8.13. Waiver of Jury Trial....................................................... 66
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SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
Schedule 5.02(b) - Existing Indebtedness
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Promissory Note
Exhibit A-2 - Form of Competitive Bid Promissory Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C-1 - Form of Assignment and Acceptance
Exhibit D-1 - Form of Opinion of Assistant General Counsel of the
Borrower
Exhibit D-2 - Form of Opinion of Special Counsel for the Borrower
Exhibit E - Form of Terms of Subordination
FIVE-YEAR CREDIT AGREEMENT
DATED AS OF MAY 29, 1998
TRUE NORTH COMMUNICATIONS INC., a Delaware corporation (the
"BORROWER"), the banks, financial institutions and other institutional lenders
(collectively, the "INITIAL LENDERS") listed on the signature pages hereof and
CITIBANK, N.A. ("CITIBANK"), as administrative agent (together with any
successor thereto appointed pursuant to Article VII, the "ADMINISTRATIVE 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
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following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and the plural forms of the terms defined):
"364-DAY CREDIT AGREEMENT" means the Credit Agreement being entered
into on the date of this Agreement among the Borrower, the banks, financial
institutions and other institutional lenders party thereto and Citibank, as
the administrative agent, as such agreement may be amended, supplemented or
otherwise modified hereafter from time to time.
"ADMINISTRATIVE AGENT" has the meaning specified in the recital of
parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means (a) in the case of Advances
denominated in US Dollars, the account of the Administrative Agent
maintained by the Administrative Agent at Citibank at its office at ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇, Reference:
True North Communications Inc., Attention: Bank Loan Syndications, (b) in
the case of Advances denominated in a Foreign Currency, the account of the
Sub-Agent designated from time to time by the Administrative Agent in a
written notice to the Borrower and the Lenders and (c) such other account
maintained by the Administrative Agent and designated by the Administrative
Agent as such in a written notice to the Borrower and the Lenders.
"ADVANCE" means a Revolving Credit Advance or a Competitive Bid
Advance.
"AFFILIATE" means, with respect to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person. For
purposes of this definition, the term "control" (including the terms
"controlling", "controlled by" and "under common control with") of a Person
means (a) in all cases other than clause (ii) of the definition of
"Eligible Assignee", the possession, direct or indirect, of the power to
vote 10% or more of the Voting Stock of such Person and (b) in all cases,
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.
"AGREEMENT VALUE" means, with respect to any Hedge Agreement at any
date of determination, the amount, if any, that would be payable to any
bank thereunder in respect of the
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"agreement value" under such Hedge Agreement if such Hedge Agreement were
terminated on such date, calculated as provided in the International Swap
Dealers Association, Inc. Code of Standard Wording, Assumptions and
Provisions for Swaps, 1992 Edition.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, such
Lender's Base Rate Lending Office in the case of a Base Rate Advance and
such Lender's Eurocurrency Lending Office in the case of a Eurocurrency
Rate Advance and, in the case of a Competitive Bid Advance, the office of
such Lender notified by such Lender to the Administrative Agent as its
Applicable Lending Office with respect to such Competitive Bid Advance.
"APPLICABLE MARGIN" means a percentage per annum equal to the
applicable percentage set forth below for the Performance Level set forth
below:
PERFORMANCE BASE RATE EUROCURRENCY
LEVEL ADVANCES RATE ADVANCES
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I 0.000% 0.250%
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II 0.000% 0.275%
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III 0.000% 0.350%
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The Applicable Margin for each Eurocurrency Rate Advance shall be
determined by reference to the Performance Level in effect from time to
time.
"APPLICABLE PERCENTAGE" means a percentage per annum equal to the
applicable percentage set forth below for the Performance Level set forth
below:
PERFORMANCE
LEVEL FACILITY FEE UTILIZATION FEE
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I 0.125% 0.050%
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II 0.150% 0.050%
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III 0.200% 0.050%
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The Applicable Percentage for the Facility Fee and the Utilization Fee
shall be determined by reference to the Performance Level in effect from
time to time.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent and, if applicable, the Borrower, in substantially the
form of Exhibit C-1 hereto.
"ASSUMING LENDER" has the meaning specified in Section 2.16(d).
"ASSUMPTION AGREEMENT" means any such agreement delivered pursuant to
Section 2.16(d), entered into between an Assuming Lender and the Borrower
and accepted by the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
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"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
higher of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"BASE RATE ADVANCE" means a Revolving Credit Advance denominated in US
Dollars that bears interest as provided in Section 2.07(a)(i).
"BASE RATE LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Base Rate Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance or the
Assumption Agreement pursuant to which it became a Lender, as the case may
be, or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Administrative Agent for such purpose.
"BORROWER" has the meaning specified in the recital of the parties to
this Agreement.
"BORROWING" means a Revolving Credit Borrowing or a Competitive Bid
Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized by law to close in New York, New York or Chicago, Illinois
and, if the applicable Business Day relates to any Eurocurrency Rate
Advances, on which dealings are carried on in the London interbank market
and, if the applicable Business Day relates to any Eurocurrency Rate
Advances denominated in a Foreign Currency, on which banks are open for
business in London and in the country of issue of the currency of such
Eurocurrency Rate Advance.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental
Protection Agency.
"CITIBANK" has the meaning specified in the recital of parties to this
Agreement.
"COMMITMENT" means, with respect to any Lender, the amount set forth
in US Dollars opposite such Lender's name on the signature pages hereof
under the caption "Commitment" or, if such Lender has entered into an
Assignment and Acceptance, the amount set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section 8.07(d)
or, if such Lender has entered into an Assumption Agreement, the amount set
forth as the Commitment of such Lender in its Assumption Agreement, in each
case as such amount may be reduced pursuant to Section 2.05 or increased
pursuant to Section 2.16.
"COMMITMENT DATE" has the meaning specified in Section 2.16(b).
"COMMITMENT INCREASE" has the meaning specified in Section 2.16(a).
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"COMPETITIVE BID ADVANCE" means an advance denominated in US Dollars
by a Lender to the Borrower as part of a Competitive Bid Borrowing
resulting from the competitive bidding procedure described in Section 2.03.
"COMPETITIVE BID BORROWING" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose offer
to make one or more Competitive Bid Advances as part of such Competitive
Bid Borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.
"COMPETITIVE BID NOTE" means a promissory note of the Borrower payable
to the order of any Lender, in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from a Competitive Bid Advance made by such Lender.
"COMPETITIVE BID OFFER" means any offer by a Lender to make a
Competitive Bid Advance as part of a proposed Competitive Bid Borrowing
pursuant to Section 2.03(a)(ii).
"COMPETITIVE BID REDUCTION" means, at any time, the deemed use of each
Lender's Commitment in an amount equal to such Lender's Pro Rata Share of
all outstanding Competitive Bid Advances at such time.
"CONFIDENTIAL INFORMATION" means information that is furnished to the
Administrative Agent or any Lender by or on behalf of the Borrower or any
of its Subsidiaries 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 Administrative Agent or such
Lender from a source other than the Borrower or any such Subsidiary that is
not, to the best of the Administrative Agent's or Lender's knowledge,
acting in violation of a confidentiality agreement with the Borrower or any
such Subsidiary.
"CONSOLIDATED" refers to the consolidation of accounts in accordance
with GAAP.
"CONSOLIDATED EBITDA" means, for any period, (a) net income (or net
loss) of the Borrower and its Subsidiaries for such period plus (b) the sum
of all amounts which, in the determination of such net income (or net loss)
for such period, have been deducted for (i) Consolidated Interest Expense,
(ii) income tax expense, (iii) depreciation expense, (iv) amortization
expense and (v) extraordinary and unusual losses deducted in calculating
net income less extraordinary and unusual gains added in calculating net
income, in each case determined in accordance with GAAP for such period.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to the Borrower
and its Subsidiaries for any period, interest expense on all Indebtedness
of the Borrower and its Subsidiaries for such period (without any deduction
for interest income of the Borrower and its Subsidiaries for such period),
determined on a Consolidated basis and in accordance with GAAP, including,
without limitation, (a) in the case of the Borrower, (i) interest expense
accrued during such period in respect of Advances and (ii) all fees accrued
during such period pursuant to Section 2.04, (b) the interest component of
all obligations as lessee under leases that have been or should be, in
accordance with GAAP, capitalized on the Consolidated balance sheet of the
Borrower and its Subsidiaries and (c) the net payment, if any, payable in
connection with interest
5
rate Hedge Agreements less the net payment, if any, received in connection
with interest rate Hedge Agreements.
"CONSOLIDATED NET WORTH" means, at any date of determination, (a)
total assets of the Borrower and its Subsidiaries (including, without
limitation, all items that are treated as intangibles in accordance with
GAAP) at such date less (b) total liabilities of the Borrower and its
Subsidiaries (including, without limitation, all deferred taxes) at such
date, in each case determined on a Consolidated basis and in accordance
with GAAP for such period; provided, however, that the term "Consolidated
Net Worth" shall not give effect to any cumulative translation adjustments
(where positive or negative) at any such date.
"CONTINUING DIRECTOR" means, for any period, an individual who is a
member of the board of directors of the Borrower on the first day of such
period or who has been nominated to the board of directors of the Borrower
by a majority of the other Continuing Directors who were members of the
board of directors of the Borrower at the time of such nomination.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a conversion of
Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type or the continuation of Revolving Credit Advances of the same
Type for another Interest Period pursuant to Section 2.08 or 2.09.
"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 SUBSIDIARY" means, at any time, any Subsidiary of the
Borrower that is not a Foreign Subsidiary at such time.
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"ELIGIBLE ASSIGNEE" means (i) a Lender, (ii) an Affiliate of a Lender
or (iii) any other Person approved by the Administrative Agent and the
Borrower as such, such approval not to be unreasonably withheld or delayed;
provided, however, that (i) neither the Borrower nor an Affiliate of the
Borrower shall qualify as an Eligible Assignee and (ii) the Borrower's
approval shall not be required during the continuance of an Event of
Default.
"ENVIRONMENTAL ACTION" means any judicial or administrative action,
suit, demand, demand letter, claim, notice of noncompliance or violation,
notice of liability or potential liability, 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.
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"ENVIRONMENTAL LAW" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree or
judicial interpretation 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.
"EQUIVALENT" means (a) for any Foreign Currency on any date of
determination, the equivalent in US Dollars of such Foreign Currency
determined by using the quoted spot rate at which the Sub-Agent's principal
office in London, England offers to exchange US Dollars for such Foreign
Currency in London, England at the close of business on the Business Day
immediately preceding such date (unless otherwise expressly stated in this
Agreement) and (b) for US Dollars on any date of determination, the
Equivalent in such Foreign Currency of US Dollars determined by using the
quoted spot rate at which the Sub-Agent's principal office in London,
England offers to exchange such Foreign Currency for US Dollars in London,
England at the close of business on the Business Day immediately preceding
such date (unless otherwise expressly stated in this Agreement).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or is under common
control with the Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA EVENT" means:
(a) other than with respect to the True North Communications Inc.
Supplemental Pension Plan, which has been terminated effective
December 31, 1997 in a standard termination pursuant to Section
4041(b) of ERISA, (i) the occurrence of a reportable event, within the
meaning of any of paragraphs (1) through (8) of Section 4043(c) 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 Section 4043(b) of ERISA with 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 could reasonably be 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) other than with respect to the True North Communications Inc.
Supplemental Pension Plan, which has been terminated effective
December 31, 1997 in a standard termination pursuant to Section
4041(b) of ERISA, 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);
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(d) the cessation of operations at a facility in the
circumstances described in Section 4062(e) of ERISA of the Borrower or
any ERISA Affiliate in the circumstances described in Section 4062(e)
of ERISA;
(e) the withdrawal by the Borrower 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 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 could constitute
grounds for the termination of, or the appointment of a trustee to
administer, a Plan.
"EUROCURRENCY LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Eurocurrency Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
or the Assumption Agreement pursuant to which it became a Lender, as the
case may be (or, if no such office is specified, its Base Rate Lending
Office), or such other office of such Lender as such Lender may from time
to time specify to the Borrower and the Administrative Agent for such
purpose.
"EUROCURRENCY LIABILITIES" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
"EUROCURRENCY RATE" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to:
(a) the rate per annum at which deposits in US Dollars or in the
applicable Foreign Currency, as the case may be, appear on page 3740
or 3750 (or a successor page thereto) of the Dow ▇▇▇▇▇ Telerate Screen
at or about 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period and for a period equal to such
Interest Period; or
(b) if such rate does not so appear on the Dow ▇▇▇▇▇ Telerate
Screen at such time, the average (rounded upward to the nearest whole
multiple of 1/100 of one percent per annum, if such average is not a
whole multiple of 1/16 of one percent per annum) of the rates per
annum at which deposits in US Dollars or in the applicable Foreign
Currency, as the case may be, are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the
London interbank market at or about 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 Eurocurrency Rate
Advance comprising part of such Revolving Credit Borrowing to be
outstanding during such
8
Interest Period and for a period equal to such Interest Period;
provided that any determination of the Eurocurrency Rate for any
Interest Period pursuant to this clause (b) shall be determined by the
Administrative Agent on the basis of applicable rates furnished to and
received by the Administrative Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
"EUROCURRENCY RATE ADVANCE" means a Revolving Credit Advance
denominated in US Dollars or in a Foreign Currency that bears interest as
provided in Section 2.07(a)(ii).
"EUROCURRENCY RATE RESERVE PERCENTAGE" means, with respect to any
Lender for any Interest Period for any Eurocurrency Rate Advance made or to
be made by such Lender, 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 thereto) for determining the actual reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for such Lenders 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 Eurocurrency Rate Advances is
determined) having a term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXISTING CREDIT AGREEMENTS" means, collectively, (a) the $60,000,000
Credit Agreement dated as of January 14, 1997 among the Borrower, the
banks, financial institutions and other institutional lenders party thereto
and Citibank, as administrative agent for the lenders thereunder, and (b)
the $90,000,000 Credit Agreement dated as of January 14, 1997 among the
Borrower, the banks, financial institutions and other institutional lenders
party thereto and Citibank, as administrative agent for the lenders
thereunder, in each case as amended, supplemented or otherwise modified to
the date of this Agreement.
"FACILITY FEE" has the meaning specified in Section 2.04(a).
"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
immediately 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 Administrative Agent from three federal funds brokers of
recognized standing selected by it.
"FIXED CHARGE COVERAGE RATIO" means, with respect to the Borrower and
its Subsidiaries for any period, the ratio of (a) (i) Consolidated EBITDA
for such period plus (ii) Net Rental Expense for such period to (b) (i)
Consolidated Interest Expense for such period plus (ii) Net Rental Expense
for such period.
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"FOREIGN CURRENCY" means the lawful currency of the United Kingdom of
Great Britain and Northern Ireland, the lawful currency of the Federal
Republic of Germany, the lawful currency of the Republic of France, the
lawful currency of The Swiss Federation, the lawful currency of The Kingdom
of the Netherlands, the lawful currency of Japan and the lawful currency of
the European Economic and Monetary Union.
"FOREIGN SUBSIDIARY" means a Subsidiary of the Borrower or any of its
Subsidiaries organized under the laws of a jurisdiction other than the
United States or any state thereof.
"FRIENDLY ACQUISITION" means any acquisition of all or any portion of
the shares of capital stock of (or other ownership or profit interests in)
any Person that either (a) has been approved by the board of directors (or
persons performing similar functions) of such Person or (b) is a negotiated
acquisition of shares of capital stock of (or other ownership or profit
interests in) such Person which are not equity securities of a class that
is registered or required to be registered pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in effect from
time to time in the United States of America and applied on a consistent
basis, subject, however, to the terms of Section 1.03.
"HAZARDOUS MATERIALS" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials, asbestos-
containing materials, polychlorinated biphenyls and radon gas and (b) any
other chemicals, materials or substances designated, classified or
regulated as "hazardous" or "toxic" or as a "pollutant" or "contaminant"
under any Environmental Law.
"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 2.16(a).
"INCREASING LENDER" has the meaning specified in Section 2.16(b).
"INDEBTEDNESS" means, with respect to any Person (without duplication
for indebtedness or other obligations of such Person):
(a) all indebtedness of such Person for borrowed money;
(b) all obligations of such Person for the deferred purchase
price of property and assets or services (other than trade payables
and other accounts payable incurred in the ordinary course of such
Person's business);
(c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments;
(d) all obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to
property or assets acquired by such
10
Person (even though the rights and remedies of the seller or the
lender under such agreement in the event of default are limited to
repossession or sale of such property or assets);
(e) all obligations of such Person as lessee under leases that
have been or should be, in accordance with GAAP, recorded as
capitalized 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, valued at the aggregate Agreement Value thereof;
(h) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any shares of
capital stock of (or other ownership or profit interests in) such
Person or any other Person, or any warrants, rights or options to
acquire such shares or other interests, valued, in the case of
Redeemable Preferred Stock, at the greater of (i) its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends
and (ii) the aggregate amount payable therefor upon purchase,
redemption, defeasance or payment therefor (but excluding any such
obligation arising solely as a result of the declaration of a dividend
(or similar distribution) on any such shares of capital stock of such
Person which is not then required to have been paid or otherwise
satisfied);
(i) all Indebtedness of other Persons referred to in clauses (a)
through (h) above or clause (j) below guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (i) to pay
or purchase such Indebtedness or to advance or supply funds for the
payment or purchase of such Indebtedness, (ii) to purchase, sell or
lease (as lessee or lessor) property or assets, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make
payment of such Indebtedness or to assure the holder of such
Indebtedness against loss, (iii) to supply funds to or in any other
manner to invest in the debtor (including any agreement to pay for
property, assets or services irrespective of whether such property or
assets are received or such services are rendered) or (iv) otherwise
to assure a creditor against loss; and
(j) all Indebtedness referred to in clauses (a) through (i) above
secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on
property and assets (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 Indebtedness.
"INDEMNIFIED PARTY" has the meaning specified in Section 8.04(b).
"INITIAL LENDERS" has the meaning specified in the recital of parties
to this Agreement.
"INTEREST PERIOD" means, for each Eurocurrency Rate Advance comprising
part of the same Revolving Credit Borrowing, the period commencing on the
date of such Eurocurrency Rate Advance or the date of the Conversion of any
Base Rate Advance into such Eurocurrency
11
Rate Advance and ending on the last day of the period selected by the
Borrower pursuant to the provisions below and, thereafter, with respect to
any such Eurocurrency Rate Advance, 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 the Borrower pursuant to the provisions
below. The duration of each such Interest Period shall be one week or one,
two, three or six months, as the Borrower may, upon notice received by the
Administrative 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:
(i) the Borrower may not select any Interest Period that ends
after the scheduled Revolver Termination Date;
(ii) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same Revolving
Credit Borrowing shall be of the same duration;
(iii) 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 succeeding
calendar month, the last day of such Interest Period shall occur on
the immediately preceding Business Day; and
(iv) 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 succeeds such initial
calendar month by the number of months equal to 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 the rulings
issued thereunder.
"INVESTMENT" means, with respect to any Person, any loan or advance to
such Person, any purchase or other acquisition of any shares of capital
stock (or other ownership or profit interest), warrants, rights, options,
obligations or other securities of such Person, any purchase or other
acquisition of all or substantially all of the property and assets of such
Person or of any division, branch or other unit of operation thereof, any
capital contribution to such Person or any other investment in such Person,
including, without limitation, any arrangement pursuant to which the
investor incurs Indebtedness of the types referred to in clause (i) or (j)
of the definition of "Indebtedness" set forth above in this Section 1.01 in
respect of such Person.
"LENDER INDEMNIFIED COSTS" has the meaning specified in Section 7.05.
"LENDERS" means, collectively, each Initial Lender, each Assuming
Lender that shall become a party hereto pursuant to Section 2.16 and each
Person that shall become a party hereto pursuant to Section 8.07.
12
"LEVERAGE RATIO" means, with respect to the Borrower and its
Subsidiaries for any period, the ratio of (a) all Indebtedness of the
Borrower and its Subsidiaries (calculating the amount of Indebtedness under
or in respect of Hedge Agreements on a net basis for all such agreements)
as of the last day of such period, determined on a Consolidated basis in
accordance with GAAP, to (b) Consolidated EBITDA for such period.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement in
respect of any property or assets or the rights or interests of any Person
therein, 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.
"MARKETABLE SECURITIES" means any of the following types of
Investments, to the extent owned by the Borrower or any of its Subsidiaries
free and clear of all Liens:
(a) readily marketable obligations issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof or obligations unconditionally guaranteed by
the full faith and credit of the Government of the United States of
America, in each case with a maturity of not more than 360 days from
the date of acquisition thereof;
(b) time deposits with, or insured certificates of deposit or
bankers' acceptances of, any commercial bank that (i) (A) is a Lender
or (B) is organized or, is a foreign branch of a commercial bank that
is organized, under the laws of the United States of America, any
state thereof or the District of Columbia or is the principal banking
subsidiary of a bank holding company organized under the laws of the
United States of America, any state thereof or the District of
Columbia and is a member of the Federal Reserve System, (ii) issues
(or the parent of which issues) commercial paper rated as described
below in clause (d) of this definition and (iii) has combined capital
and surplus of at least $1,000,000,000, in each case with a maturity
of not more than one year from the date of acquisition thereof;
(c) time deposits with, or insured certificates of deposit or
bankers' acceptances of, any commercial bank that (i) is a member of
Organization for Economic Cooperation and Development, (ii) issues
long term non-credit enhanced debt obligations rated at least "A-1"
(or the then equivalent grade) by Moody's or at least "A+" (or the
then equivalent grade) by S&P and (iii) has combined capital and
surplus of at least $1,000,000,000, in each case with a maturity of
not more than one year from the date of acquisition thereof;
(d) commercial paper issued by any Person organized under the
laws of any state of the United States of America and rated at least
"Prime-1" (or the then equivalent grade) by Moody's or at least "A-1"
(or the then equivalent grade) by S&P, in each case with a maturity of
not more than 180 days from the date of acquisition thereof;
(e) Investments, classified in accordance with GAAP as current
assets of the Borrower or any of its Subsidiaries, in money market
investment programs registered under the Investment Company Act of
1940, as amended, which are administered by
13
financial institutions that have the highest rating obtainable from
either Moody's or S&P, and the portfolios of which are limited solely
to Investments of the character and quality described in clauses (a),
(b) and (d) of this definition;
(f) repurchase agreements entered with any financial institution
organized under the laws of any state of the United States of America
whose (i) long term non-credit enhanced debt obligations are rated at
least "A-2" (or the then equivalent grade) by Moody's or at least "A"
(or the then equivalent grade) by S&P and (ii) commercial paper is
rated as described above in clause (d) of this definition, in each
case with a maturity of not more than 92 days from the date of
acquisition thereof;
(g) general obligations issued or directly and fully guaranteed
or otherwise supported by the full taxation authority of any state of
the United States of America or any municipal corporation or other
agency or instrumentality thereof and rated at one of the two highest
investment grade ratings of Moody's or S&P, in each case with a
maturity of not more than 365 days from the date of acquisition
thereof;
(h) general obligations of any state of the United States of
America or any municipal corporation or other agency or
instrumentality thereof which, based on the escrow, are rated as
described above in clause (g) of this definition and which have been
irrevocably called for redemption and advance refunded through the
deposit in escrow of (i) readily marketable obligation solely of the
type described above in clause (a) of this definition or (ii) other
debt securities which are (A) not callable at the option of the issuer
thereof prior to their stated maturity, (B) irrevocably pledged solely
in support of the payment of all principal of and interest on such
general obligations and (C) in an aggregate principal amount and with
such stated rates of interest as shall be sufficient to pay in full
all principal of and interest and premiums, if any, on such general
obligations as the same become due and payable (as verified by
independent public accountants of recognized standing), in each case
with a maturity of not more than 365 days from the date of acquisition
thereof;
(i) tax-exempt or tax adjustable rate preferred stock issued by a
Person organized under the laws of any state of the United States of
America whose long term non-credit enhanced debt obligations are rated
at least "A-2" (or the then equivalent grade) by Moody's or at least
"A" (or the then equivalent grade) by S&P, in each case with a
maturity of not more than 120 days from the date of acquisition
thereof; and
(j) readily marketable obligations of any Person not otherwise
included in clauses (a) through (i) of this definition in an aggregate
amount of no more than $20,000,000 for all such obligations, so long
as (i) such Person is organized under the laws of any state of the
United States of America and (ii) each such obligation is rated at
least "Aa+" (or the then equivalent grade) by Moody's or at least "AA"
(or the then equivalent grade) by S&P, in each case with a maturity of
not more than 92 days from the date of acquisition thereof.
"MATERIAL ADVERSE CHANGE" means any material adverse change in the
business, financial condition, operations, properties or performance of the
Borrower and its Subsidiaries, taken as a whole.
14
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, financial condition, operations, properties or performance of the
Borrower and its Subsidiaries, taken as a whole, (b) the rights and
remedies of the Administrative Agent or any Lender under this Agreement or
any Note or (c) the ability of the Borrower to perform its obligations
under this Agreement or any Note.
"MATERIAL SUBSIDIARY" means, at any date of determination, any
Subsidiary of the Borrower that, either individually or together with its
Subsidiaries, taken as a whole, (a) accounted for more than 2% of the
consolidated revenues of the Borrower and its Subsidiaries for the most
recently completed fiscal quarter for which the Lenders have received
Consolidated financial statements of the Borrower and its Subsidiaries
pursuant to Section 5.01(j)(i) or 5.01(j)(ii) or (b) owned more than 2% of
the Consolidated assets of the Borrower and its Subsidiaries as of the last
day of the most recently completed fiscal quarter for which the Lenders
have received Consolidated financial statements of the Borrower and its
Subsidiaries pursuant to Section 5.01(j)(i) or 5.01(j)(ii), in each case
determined in accordance with GAAP for such period.
"MEASUREMENT PERIOD" means, at any date of determination, the most
recently completed four consecutive fiscal quarters of the Borrower and its
Subsidiaries ending on or immediately prior to such date.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower 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 subject to Title IV of ERISA and
is maintained for employees of the Borrower or any ERISA Affiliate and at
least one Person other than the Borrower and the ERISA Affiliates or (b)
was so maintained and in respect of which the Borrower or any ERISA
Affiliate could reasonably be expected to have liability under Section 4064
or 4069 of ERISA in the event such plan has been or were to be terminated.
"NET RENTAL EXPENSE" means, with respect to the Borrower and its
Subsidiaries for any period, (a) the aggregate amount of all rental payment
obligations of the Borrower and its Subsidiaries under or in respect of
operating leases of real or personal property during such period less (b)
the aggregate amount of all revenues received in cash by the Borrower or
any of its Subsidiaries from any sublessor of such operating leases and all
such rental payment obligations otherwise satisfied on behalf or in lieu of
the Borrower or any of its Subsidiaries, whether by a sublessor or any
other Person during such period.
"NOTE" means a Revolving Credit Note or a Competitive Bid Note.
"NOTICE OF COMPETITIVE BID BORROWING" has the meaning specified in
Section 2.03(a)(i).
15
"NOTICE OF REVOLVING CREDIT BORROWING" has the meaning specified in
Section 2.02(a).
"NPL" means the National Priorities List under CERCLA.
"OTHER TAXES" has the meaning specified in Section 2.14(b).
"PAYMENT OFFICE" means, with respect to any Foreign Currency, such
office of Citibank as shall be designated by the Administrative Agent as
such in a written notice to the Borrower and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor thereto).
"PERFORMANCE LEVEL" means Performance Level I, Performance Level II or
Performance Level III, as appropriate. For purposes of determining the
Performance Level at any date of determination, no change in the
Performance Level shall be effective until three Business Days after the
date on which the Administrative Agent receives financial statements
pursuant to Section 5.01(j)(i) or 5.01(j)(ii) reflecting such change;
provided, however, that if the Borrower has not submitted to the
Administrative Agent the information required under this sentence within
five Business Days after the date on which such information is required
under Section 5.01(j)(i) or 5.01(j)(ii), as the case may be, the
Performance Level shall be deemed to be at Performance Level III for so
long as such information has not been submitted.
"PERFORMANCE LEVEL I" means, at any date of determination, that the
Borrower and its Subsidiaries shall have maintained a Leverage Ratio of
less than 1.00:1 for the most recently completed Measurement Period prior
to such date.
"PERFORMANCE LEVEL II" means, at any date of determination, that (a)
the Performance Level does not meet the requirements of Performance Level I
and (b) the Borrower and its Subsidiaries shall have maintained a Leverage
Ratio of less than 2.50:1 for the most recently completed Measurement
Period prior to such date.
"PERFORMANCE LEVEL III" means, at any date of determination, that the
Performance Level does not meet the requirements of Performance Level I or
Performance Level II.
"PERMITTED LIENS" means any of the following:
(a) Liens for taxes, assessments and governmental charges or
levies to the extent not required to be paid under Section 5.01(b);
(b) Liens 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 (other
than Indebtedness for borrowed money) that (i) are not overdue for a
period of more than 90 days or (ii) are being contested in good faith
and by proper proceedings and as to which appropriate reserves are
being maintained in accordance with generally accepted accounting
principles in effect from time to time;
16
(c) pledges or deposits to secure obligations under workers'
compensation laws or other similar legislation (other than in respect
of employee benefit plans subject to ERISA) or to secure public or
statutory obligations;
(d) Liens securing the performance of, or payment in respect of,
bids, tenders, government contracts (other than for the repayment of
borrowed money), surety and appeal bonds and other obligations of a
similar nature incurred in the ordinary course of business;
(e) any interest or title of a lessor or sublessor and any
restriction or encumbrance to which the interest or title of such
lessor or sublessor may be subject that is incurred in the ordinary
course of business and, either individually or when aggregated with
all other Permitted Liens in effect on any date of determination,
could not be reasonably expected to have a Material Adverse Effect;
and
(f) easements, rights of way, zoning restrictions and other
encumbrances on title to real property that do not, either
individually or in the aggregate, render title to the property
encumbered thereby unmarketable or materially and 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 or unlimited 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.
"PREFERRED STOCK" means, with respect to any Person, shares of capital
stock (or other ownership or profit interests) issued by such Person that
are entitled to a preference or priority over any other shares of capital
stock (or other ownership or profit interests) issued by such Person upon
any distribution of such Person's property and assets, whether by dividend
or upon liquidation.
"PRO RATA SHARE" of an amount means, with respect to any Lender at any
time, the product of (a) a fraction the numerator of which is the amount of
such Lender's Commitment at such time and the denominator of which is the
aggregate Commitments of all of the Lenders at such time multiplied by (b)
such amount.
"REDEEMABLE" means, with respect to any capital stock or other
ownership or profit interest, Indebtedness or other right or obligation,
any such right or obligation that (a) the issuer has undertaken to redeem
at a fixed or determinable date or dates, whether by operation of a sinking
fund or otherwise, or upon the occurrence of a condition not solely within
the control of the issuer or (b) is redeemable at the option of the holder.
"REFERENCE BANKS" means Citibank, The First National Bank of Chicago,
Bank of America National Trust and Savings Association and The Chase
Manhattan Bank (or, in each case, any successor in interest thereto) or, in
the event that one of such banks ceases to be a Lender hereunder at any
time, any other commercial bank designated by the Borrower and approved by
the Required Lenders as constituting a "Reference Bank" hereunder.
17
"REGISTER" has the meaning specified in Section 8.07(d).
"REQUIRED LENDERS" means, at any time, Lenders holding a majority in
interest of the aggregate unpaid principal amount of the Revolving Credit
Advances (determined in the case of any Revolving Credit Advances
denominated in a Foreign Currency by reference to the Equivalent thereof in
US Dollars at such time) owing to all Lenders at such time or, if no such
principal amount is outstanding at such time, Lenders holding a majority in
interest of the Commitments at such time.
"RESPONSIBLE BANK OFFICER" means, with respect to any Lender, any
officer of such Lender holding at least the title of Vice President (or the
equivalent thereto) of such Lender and having direct and ongoing
involvement in the credit decisions made in respect of this Agreement and
the Notes.
"RESPONSIBLE OFFICER" means the Chief Executive Officer, Chief
Financial Officer, Treasurer or General Counsel of the Borrower or any
other officer of the Borrower responsible for overseeing and reviewing
compliance with this Agreement and the Notes.
"REVOLVER TERMINATION DATE" means the earlier of May 29, 2003 and the
date of termination in whole of the aggregate Commitments pursuant to
Section 2.05 or 6.01.
"REVOLVING CREDIT ADVANCE" means an advance by a Lender to the
Borrower as part of a Revolving Credit Borrowing and refers to a Base Rate
Advance or a Eurocurrency Rate Advance (each of which shall be a "Type" of
Revolving Credit Advance).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances in the same currency and of the same
Type made by each of the Lenders to the Borrower pursuant to Section 2.01.
"REVOLVING CREDIT NOTE" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of ▇▇▇▇▇▇▇ ▇-
▇ hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the Revolving Credit Advances made by such Lender.
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is subject to Title IV of ERISA and
is maintained for employees of the Borrower or any ERISA Affiliate and no
Person other than the Borrower and the ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower could reasonably be
expected to have liability under Section 4069 of ERISA in the event such
plan has been or were to be terminated.
"SUB-AGENT" means Citibank International plc, as sub-agent for the
Revolving Credit Borrowings consisting of Eurocurrency Rate Advances.
18
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, joint venture, limited or unlimited liability company, trust
or estate of which (or in which) more than 50% of:
(a) the issued and outstanding shares of capital stock having
ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether at the time shares of
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency);
(b) the interest in the capital or profits of such limited or
unlimited 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.
"TAXES" has the meaning specified in Section 2.14(a).
"TYPE" has the meaning specified in the definition of "Revolving
Credit Advances" set forth above in this Section 1.01.
"UNUSED COMMITMENT" means, with respect to any Lender at any time, (a)
such Lender's Commitment at such time less (b) the sum of:
(i) the aggregate principal amount of all Revolving Credit
Advances made by such Lender (in its capacity as a Lender) and
outstanding at such time (determined in the case of any such Revolving
Credit Advance denominated in a Foreign Currency by reference to the
Equivalent thereof in US Dollars at such time); and
(ii) such Lender's Pro Rata Share of the aggregate principal
amount of all Competitive Bid Advances made by the Lenders and
outstanding at such time.
"US DOLLARS" and the "$" sign each mean the lawful currency of the
United States of America.
"UTILIZATION FEE" has the meaning specified in Section 2.04(b).
"VOTING STOCK" means shares of 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.
"WHOLLY-OWNED SUBSIDIARY" means, with respect to any Subsidiary of any
Person, the ownership of all of the outstanding shares of capital stock of
(or other ownership or profit interests in) such Subsidiary (other than any
director's qualifying shares or Investments by foreign nationals mandated
by applicable law) by such Person or one or more Wholly-Owned Subsidiaries
of such Person.
19
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
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", the word "through" means "through
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 GAAP;
provided, however, that, if any changes in accounting principles from those used
in the preparation of the Consolidated financial statements of the Borrower and
its Subsidiaries for the fiscal year of the Borrower ended December 31, 1997 (as
is delivered to the Lenders pursuant to Section 4.01(e)) occur by reason of the
promulgation of rules, regulations, pronouncements, opinions or other
requirements of the Financial Accounting Standards Board or the American
Institute of Certified Public Accountants (or successors thereto or agencies
with similar functions) and such changes would affect (or would result in a
change in the method of calculation of) any of the covenants set forth in
Section 5.02 or 5.03, or any of the defined terms related thereto contained in
Section 1.01, then upon the request of any party hereto, the Borrower, the
Administrative Agent and the Lenders shall enter into negotiations in good
faith, if and to the extent necessary, to amend in accordance with Section 8.01
all such covenants or terms as would be affected by such changes in GAAP in such
manner as would maintain the economic terms of such covenants as in effect under
this Agreement, prior to giving effect to the occurrence of any such changes;
and provided further, however, that until the amendment of the covenants and the
defined terms referred to in the immediately preceding proviso becomes
effective, all covenants and defined terms shall be performed, observed and
determined, and any determination of compliance with any such covenant shall be
made, as though no such changes in accounting principles had been made and the
Borrower shall deliver to the Lenders, in addition to the Consolidated financial
statements otherwise required to be delivered to the Lenders under Sections
5.01(j)(i) and 5.01(j)(ii) during such period, a statement of reconciliation
conforming such Consolidated financial statements to GAAP prior to such changes.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
20
SECTION 2.01. The Revolving Credit Advances. Each Lender severally
-----------------------------
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to the Borrower from time to time on any Business Day during the
period from the Effective Date until the Revolver Termination Date in an
aggregate amount for each such Advance (determined in the case of any Revolving
Credit Advance denominated in a Foreign Currency by reference to the Equivalent
thereof in US Dollars on the date of delivery of the related Notice of Revolving
Credit Borrowing) not to exceed at any time the Unused Commitment of such
Lender. Each Revolving Credit Borrowing shall be in an aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof (or, in the
case of a Revolving Credit Borrowing consisting of Revolving Credit Advances
denominated in a Foreign Currency, the Equivalent thereof in the Foreign
Currency in which such Revolving Credit Borrowing is denominated determined on
the date of delivery of the related Notice of Revolving Credit Borrowing) (or,
if a proposed Competitive Bid Borrowing is made on the same date as such
Revolving Credit Borrowing, such lesser amount as is equal to the amount by
which the aggregate amount of such Competitive Bid Borrowing requested by the
Borrower to be made on such date exceeds the aggregate amount of Competitive Bid
Advances offered to be made by the Lenders and accepted by the Borrower in
respect of such Competitive Bid Borrowing on such date) and shall consist of
Revolving Credit 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 Unused Commitment, the Borrower may borrow under this Section 2.01,
prepay pursuant to Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
------------------------------------
Revolving Credit Borrowing shall be made on notice, given not later than 11:00
A.M. (New York City time) on the third Business Day prior to the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in US Dollars, 4:00 P.M.
(London time) on the third day prior to the date of the proposed Revolving
Credit Borrowing in the case of a Revolving Credit Borrowing consisting of
Eurocurrency Rate Advances denominated in a Foreign Currency, or 11:00 A.M. (New
York City time) on the same Business Day as the day of the proposed Revolving
Credit Borrowing in the case of a Revolving Credit Borrowing consisting of Base
Rate Advances, by the Borrower to the Administrative Agent (and, in the case of
a Revolving Credit Borrowing consisting of Eurocurrency Rate Advances,
simultaneously to the Sub-Agent), which shall give to each Lender prompt notice
thereof by telecopier or telex. Each notice of a Revolving Credit Borrowing (a
"NOTICE OF REVOLVING CREDIT BORROWING") shall be by telephone, confirmed
immediately in writing, or by telecopier or telex, in substantially the form of
Exhibit B-1 hereto, specifying therein the requested (i) date of such Revolving
Credit Borrowing (which shall be a Business Day), (ii) Type of Advances
comprising such Revolving Credit Borrowing, (iii) aggregate principal amount of
such Revolving Credit Borrowing and (iv) in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances, currency and initial
Interest Period for each such Revolving Credit Advance. Each Lender shall,
before 1:00 P.M. (New York City time) on the date of each such Revolving Credit
Borrowing consisting of Base Rate Advances or Eurocurrency Rate Advances
denominated in US Dollars, and 11:00 A.M. (London time) on the date of each such
Revolving Credit Borrowing consisting of Eurocurrency Rate Advances denominated
in a Foreign Currency, make available for the account of its Applicable Lending
Office to the Administrative Agent at the applicable Administrative Agent's
Account, in same day funds, such Lender's Pro Rata Share of such Revolving
Credit Borrowing. After the Administrative Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower at the
Administrative Agent's address set forth in Section 8.02(a) or the applicable
Payment Office, as the case may be.
21
(b) Anything in Section 2.02(a) to the contrary notwithstanding, (i)
the Borrower may not select Eurocurrency Rate Advances for any Revolving Credit
Borrowing if the obligation of the Lenders to make Eurocurrency Rate Advances
shall then be suspended pursuant to Section 2.08 or 2.12 and (ii) Eurocurrency
Rate Advances may not be outstanding as part of more than ten separate Revolving
Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be irrevocable
and binding on the Borrower. In the case of any Revolving Credit Borrowing that
the related Notice of Revolving Credit Borrowing specifies is to be comprised of
Eurocurrency Rate Advances, the Borrower shall indemnify each Lender against any
loss, cost or reasonable expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in the related Notice of
Revolving Credit Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss, cost or reasonable expense (excluding
any loss of anticipated profits) incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Revolving Credit Advance to be made by such Lender as part of such Revolving
Credit Borrowing when such Revolving Credit Advance, as a result of such
failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Revolving Credit Borrowing that such Lender will
not make available to the Administrative Agent such Lender's Pro Rata Share of
such Revolving Credit Borrowing, the Administrative Agent may assume that such
Lender has made such Pro Rata Share available to the Administrative Agent on the
date of such Revolving Credit Borrowing in accordance with Section 2.02(a) and
the Administrative Agent may, in reliance upon such assumption, make a
corresponding amount available to the Borrower on such date. If and to the
extent that any Lender shall not have so made such Pro Rata Share available to
the Administrative Agent, such Lender and the Borrower severally agree to pay or
to repay to the Administrative Agent forthwith on demand such corresponding
amount, together with interest thereon, for each day from the date such amount
is made available to the Borrower until the date such amount is paid or repaid
to the Administrative Agent, at (i) in the case of the Borrower, the interest
rate applicable at such time to Revolving Credit Advances comprising such
Revolving Credit Borrowing and (ii) in the case of such Lender, the higher of
(i) the Federal Funds Rate and (ii) the cost of funds incurred by the
Administrative Agent in respect of such amount. If such Lender shall pay to the
Administrative Agent such corresponding amount, such amount so paid shall
constitute such Lender's Revolving Credit Advance as part of such Revolving
Credit Borrowing for all purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to
be made by it as part of any Revolving Credit Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Revolving Credit
Advance on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
----------------------------
severally agrees that the Borrower may request Competitive Bid Borrowings under
this Section 2.03 denominated in US Dollars from time to time on any Business
Day during the period from the date hereof until the date occurring seven days
prior to the scheduled Revolver Termination Date in the manner set forth below.
Each Lender may elect (but shall not be obligated to) to make one or more
Competitive Bid Offers in response to a request by the Borrower for a
Competitive Bid Borrowing, and the aggregate outstanding principal amount of the
Competitive Bid Advances made by any Lender at any time may exceed the
22
Commitment of such Lender at such time; provided that, following the making of
each Competitive Bid Borrowing, the aggregate principal amount of all Advances
(determined in the case of any Revolving Credit Advances denominated in a
Foreign Currency by reference to the Equivalent thereof in US Dollars at such
time) outstanding at such time shall not exceed the aggregate Commitments at
such time (determined without regard to any Competitive Bid Reduction in effect
at such time).
(i) The Borrower shall request a Competitive Bid Borrowing by
delivering notice of such request to each of the Lenders and the
Administrative Agent, by telecopier or telex, not later than 10:45 A.M.
(New York City time) on the day of the proposed Competitive Bid Borrowing
(which shall be a Business Day). Each notice of a Competitive Bid
Borrowing (a "NOTICE OF COMPETITIVE BID BORROWING") shall be in
substantially the form of Exhibit B-2 hereto, specifying therein (A) the
proposed date of such proposed Competitive Bid Borrowing (which shall be a
Business Day), (B) the requested aggregate amount of such proposed
Competitive Bid Borrowing (which shall be at least $3,000,000 or an
integral multiple of $500,000 in excess thereof), (C) the requested
maturity date for repayment of each Competitive Bid Advance to be made as
part of such proposed Competitive Bid Borrowing (which maturity date may
not be earlier than the date occurring one Business Day after the date of
such Competitive Bid Borrowing or later than the scheduled Revolver
Termination Date then in effect), (D) whether or not the Competitive Bid
Advances comprising such proposed Competitive Bid Borrowing may be prepaid
and, if so, whether with or without penalty, (E) the proposed interest
payment date or dates relating thereto and (F) the other terms, if any, to
be applicable to such proposed Competitive Bid Borrowing. Each Notice of
Competitive Bid Borrowing shall be irrevocable and binding on the Borrower.
(ii) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably make one or more Competitive Bid Offers to the Borrower as part
of such proposed Competitive Bid Borrowing, by notifying the Borrower and
the Administrative Agent, by telex or telecopier, not later than 11:30 A.M.
(New York City time) on the date of such proposed Competitive Bid
Borrowing, of the following: (A) the minimum amount and maximum amount of
each Competitive Bid Advance that such Lender would be willing to make as
part of such proposed Competitive Bid Borrowing; (B) the rate or rates of
interest for each such Competitive Bid Advance (in each case which shall be
fixed rates per annum); and (C) such Lender's Applicable Lending Office
with respect to each such Competitive Bid Advance. If any Lender shall
elect not to make a Competitive Bid Offer as part of a proposed Competitive
Bid Borrowing, such Lender shall so notify the Borrower not later than
11:30 A.M. (New York City time) on the date of the proposed Competitive
Bid Borrowing, and such Lender shall not be obligated to, and shall not,
make any Competitive Bid Advance as part of such Competitive Bid Borrowing;
provided that the failure by any Lender to give such notice shall not cause
such Lender to be obligated to make any Competitive Bid Advance as part of
such proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before 12:30 P.M. (New York City
time) on the date of a proposed Competitive Bid Borrowing, either:
(A) cancel such Competitive Bid Borrowing by giving each of the
Lenders and the Administrative Agent notice to that effect, and such
Competitive Bid Borrowing shall not be made; or
23
(B) accept one or more of the Competitive Bid Offers made by any
Lender or Lenders, in its sole discretion but subject to the next two
succeeding sentences, by giving notice to the Lender or Lenders who
made such Competitive Bid Offers (and simultaneous notice thereof to
the Administrative Agent) of the amount of each Competitive Bid
Advance to be made by each Lender as part of such Competitive Bid
Borrowing (in each case which amount shall be equal to or greater than
the minimum amount, and equal to or less than the maximum amount,
notified to the Borrower by such Lender for such Competitive Bid
Advance in its related Competitive Bid Offer), and reject any
remaining Competitive Bid Offers made by the Lenders by giving notice
to that effect to the Lender or Lenders who made such Competitive Bid
Offer (and simultaneous notice thereof to the Administrative Agent);
provided, however, that the Borrower may not accept Competitive Bid
Offers that, in the aggregate, exceed the amount of the requested
Competitive Bid Borrowing specified in the related Notice of
Competitive Bid Borrowing. The Borrower shall accept the Competitive
Bid Offers made by any Lender or Lenders in order of the lowest to the
highest rates of interest offered by such Lenders for a particular
Competitive Bid Borrowing; provided, however, that if any Lender
includes any material conditions or qualifications in any of its
Competitive Bid Offers other than those provided for under the terms
of the related Notice of Competitive Bid Borrowing, the Borrower may
reject such Competitive Bid Offer on the basis of such additional
conditions or qualifications regardless of the rate or rates of
interest included therein. If two or more Lenders have offered the
same rate of interest for a particular Competitive Bid Borrowing and
the amount of accepted Competitive Bid Offers is less than the
aggregate amount of such Competitive Bid Offers, the amount to be
borrowed at such rate of interest shall be allocated among such
Lenders ratably according to the amount that each such Lender offered
at such rate of interest.
If the Borrower accepts one or more of the Competitive Bid Offers made by
any Lender or Lenders pursuant to subclause (iii)(B) of this Section
2.03(a), such notice of acceptance shall be irrevocable and binding on the
Borrower.
(iv) Each Lender that is to make a Competitive Bid Advance as part of
any such Competitive Bid Borrowing shall, before 2:30 P.M. (New York City
time) on the date of such Competitive Bid Borrowing, make available for the
account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's portion of
such Competitive Bid Borrowing. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the Administrative
Agent of such funds, the Administrative Agent will make such funds
available to the Borrower at the Administrative Agent's address set forth
in Section 8.02(a) or at such account as the Borrower shall designate in
writing to the Administrative Agent and the Lenders for such purpose.
Promptly after (i) each Competitive Bid Borrowing, the Borrower will notify
each Lender of the amount of such Competitive Bid Borrowing, the fixed
rates of interest at which each Competitive Bid Advance comprising part of
such Competitive Bid Borrowing were made, the corresponding Competitive Bid
Reduction resulting therefrom and the dates upon which such Competitive Bid
Reduction commenced and will terminate and (ii) the prepayment of any
Competitive Bid Borrowing by the Borrower, the Administrative Agent will
notify each Lender of the amount and date of each such prepayment and the
amount, if any, of the corresponding Competitive Bid Reduction remaining
after giving effect thereto.
24
(b) Within the limits and on the conditions set forth in this Section
2.03, the Borrower may from time to time borrow under Section 2.03(a), repay
pursuant to Section 2.06(b) or prepay pursuant to Section 2.03(d), and reborrow
under Section 2.03(a).
(c) The Borrower shall have no right to prepay any principal amount
of any Competitive Bid Advance unless, and then only on the terms, specified by
the Borrower in the Notice of Competitive Bid Borrowing delivered pursuant to
Section 2.03(a)(i) and set forth in the Competitive Bid Note evidencing such
Competitive Bid Advance.
(d) The Borrower shall pay interest on the unpaid principal amount of
each Competitive Bid Advance from the date of such Competitive Bid Advance to
the date the principal amount of such Competitive Bid Advance is repaid in full,
at the rate of interest for such Competitive Bid Advance specified by the Lender
making such Competitive Bid Advance in its notice with respect thereto delivered
pursuant to Section 2.03(a)(ii), payable on the interest payment date or dates
specified by the Borrower in the Notice of Competitive Bid Borrowing delivered
pursuant to Section 2.03(a)(i) and provided in the Competitive Bid Note
evidencing such Competitive Bid Advance.
(e) The indebtedness of the Borrower to which any Competitive Bid
Borrowing is made resulting from each Competitive Bid Advance made to the
Borrower as part of such Competitive Bid Borrowing shall be evidenced by a
separate Competitive Bid Note of the Borrower, payable to the order of the
Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay
---- ------------
to the Administrative Agent, for the account of each Lender, a facility fee (the
"FACILITY FEE") on the average daily amount of such Lender's Commitment (whether
used or unused) from the date of this Agreement in the case of each Initial
Lender and from the effective date specified in the Assignment and Acceptance or
the Assumption Agreement, as the case may be, pursuant to which it became a
Lender in the case of each other Lender until, in each case, the Revolver
Termination Date, at a rate per annum equal to the Applicable Percentage in
effect from time to time, payable in arrears quarterly on the tenth day of each
July, October, January and April, commencing July 10, 1998 and on the Revolver
Termination Date.
(b) Utilization Fee. The Borrower agrees to pay to the Administrative
---------------
Agent, for the account of each Lender, for each calendar month in which (i) the
average daily aggregate principal amount of the sum of (A) all Advances
outstanding hereunder during such calendar month and (B) all advances
outstanding under the 364-Day Credit Agreement during such calendar month
exceeds (ii) 50% of the sum of (A) the average daily aggregate Commitments
during such calendar month and (B) the average daily aggregate commitments of
the lenders under the 364-Day Credit Agreement during such calendar month, a
utilization fee (the "UTILIZATION FEE") on the average daily aggregate principal
amount of Advances outstanding during such calendar month at a rate per annum
equal to the Applicable Percentage in effect from time to time, payable in
arrears on each date on which the Facility Fee is payable pursuant to Section
2.04(a). For all purposes of this Section 2.04(b), the aggregate principal
amount of any Revolving Credit Advances denominated in a Foreign Currency and
outstanding hereunder on any day shall be determined by reference to the
Equivalent thereof in US Dollars on such day, and the aggregate principal amount
of any advances denominated in a currency other than US Dollars and outstanding
under the 364-Day Credit Agreement on any day shall be determined by reference
to the Equivalent (as defined in the 364-Day Credit Agreement) thereof in US
Dollars on such day.
25
(c) Administrative Agent's Fees. The Borrower shall pay to the
---------------------------
Administrative Agent for its own account such fees as may from time to time be
agreed between the Borrower and the Administrative Agent.
SECTION 2.05. Termination or Reduction of the Commitments. The
-------------------------------------------
Borrower shall have the right, upon at least three Business Days' notice to the
Administrative Agent, to terminate in whole or reduce ratably in part the
aggregate Unused Commitments of the Lenders; provided that each partial
reduction shall be in an aggregate amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof or, if less, the aggregate amount of all
Commitments at such time.
SECTION 2.06. Repayment of Advances. (a) Revolving Credit Advances.
--------------------- -------------------------
The Borrower shall repay to the Administrative Agent, for the ratable account of
the Lenders, on the Revolver Termination Date the aggregate principal amount of
all Revolving Credit Advances outstanding on such date.
(b) Competitive Bid Advances. The Borrower shall repay to the
------------------------
Administrative Agent, for the account of each Lender that has made a Competitive
Bid Advance, the aggregate outstanding principal amount of each Competitive Bid
Advance made and owing to such Lender on the earlier of (i) the maturity date
therefor, specified in the related Notice of Competitive Bid Borrowing delivered
pursuant to Section 2.03(a)(i) and provided in the Competitive Bid Note
evidencing such Competitive Bid Advance, and (ii) the Revolver Termination Date.
SECTION 2.07. Interest on Revolving Credit Advances. (a) Scheduled
------------------------------------- ---------
Interest. The Borrower shall pay interest on the unpaid principal amount of
--------
each Revolving Credit Advance owing to each Lender from the date of such
Revolving Credit 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 Revolving Credit
------------------
Advance is a Base Rate Advance, a rate per annum equal at all times to the
sum of (A) the Base Rate in effect from time to time and (B) the Applicable
Margin in effect from time to time, payable in arrears quarterly on the
tenth day of each July, October, January and April during such periods and
on the date such Base Rate Advance shall be Converted or paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such
--------------------------
Revolving Credit Advance is a Eurocurrency Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving Credit
Advance to the sum of (A) the Eurocurrency Rate for such Interest Period
for such Revolving Credit Advance and (B) the Applicable Margin in effect
from time to time during such Interest Period, 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 Eurocurrency 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 Borrower shall pay interest
on:
(i) the principal amount of each Revolving Credit Advance owing to
each Lender that is not paid when due, payable in arrears on the dates
referred to in Section 2.07(a)(i) or 2.07(a)(ii), at a rate per annum equal
at all times to 2% per annum above the rate per annum
26
required to be paid on such Revolving Credit Advance pursuant to Section
2.07(a)(i) or 2.07(a)(ii), as applicable;
(ii) the principal amount of each Competitive Bid Advance owing to
any Lender that is not paid when due, payable in arrears on the date or
dates on which interest is payable on such Competitive Bid Advance, at a
rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Competitive Bid Advance, under the terms of the
Competitive Bid Note evidencing such Competitive Bid Advance; and
(iii) to the fullest extent permitted by applicable law, the amount
of any interest, fees or other amounts owing to the Administrative Agent or
any Lender under this Agreement or any Note 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
Section 2.07(a)(i).
(c) Additional Interest on Eurocurrency Rate Advances. The Borrower
-------------------------------------------------
shall pay to each Lender, so long as and to the extent such Lender shall be
required under regulations of the Board of Governors of the Federal Reserve
System to maintain reserves with respect to liabilities or assets consisting of
or including Eurocurrency Liabilities, additional interest on the unpaid
principal amount of each Eurocurrency Rate Advance owing to such Lender, from
the date of such Eurocurrency Rate Advance until such principal amount is paid
in full, at an interest rate per annum equal at all times to the remainder
obtained by subtracting (a) the Eurocurrency Rate for the applicable Interest
Period for such Eurocurrency Rate Advance from (b) the rate obtained by dividing
such Eurocurrency Rate by a percentage equal to 100% minus the Eurocurrency Rate
Reserve Percentage of such Lender for such Interest Period, payable on each date
on which interest is otherwise payable on such Eurocurrency Rate Advance. Such
Lender shall as soon as practicable provide notice to the Administrative Agent
and the Borrower of any such additional interest arising in connection with any
such Eurocurrency Rate Advance, which notice shall be conclusive and binding,
absent demonstrable error.
SECTION 2.08. Interest Rate Determination and Availability. (a)
--------------------------------------------
Each Reference Bank agrees to furnish to the Administrative Agent timely
information for the purpose of determining the Eurocurrency Rate in accordance
with clause (b) of the definition thereof set forth in Section 1.01. If any one
of the Reference Banks shall not furnish such timely information to the
Administrative Agent for the purpose of determining any such interest rate, the
Administrative Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks. The Administrative
Agent shall give prompt notice to the Borrower and the Lenders of the applicable
interest rate determined by the Administrative Agent for purposes of Section
2.07(a)(i) or 2.07(a)(ii), and the rate, if any, furnished by each Reference
Bank for the purpose of determining the applicable interest rate under Section
2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the Required
Lenders notify the Administrative Agent that (i) they are unable to obtain
matching deposits in the London interbank market at or about 11:00 A.M. (London
time) on the second Business Day before the making of a Revolving Credit
Borrowing in sufficient amounts to fund their respective Revolving Credit
Advances as a part of such Revolving Credit Borrowing during such Interest
Period or (ii) the Eurocurrency 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 Eurocurrency Rate Advances for such Interest
Period,
27
the Administrative Agent shall forthwith so notify the Borrower and the Lenders,
whereupon (A) each Eurocurrency Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, (1) if such Eurocurrency Rate
Advance is denominated in US Dollars, Convert into a Base Rate Advance and (2)
if such Eurocurrency Rate Advance is denominated in a Foreign Currency, be
exchanged for an Equivalent amount of US Dollars and Converted into a Base Rate
Advance and (B) the obligation of the Lenders to make Eurocurrency Rate Advances
shall be suspended until the Administrative Agent shall notify the Borrower and
the Lenders that the circumstances causing such suspension no longer exist;
provided that, if the circumstances set forth in clause (ii) of this Section
2.08(b) are applicable, the Borrower may elect, by notice to the Administrative
Agent and the Lenders, to continue such Eurocurrency Rate Advances in such
Foreign Currency for Interest Periods having a duration of one month, which
Advances shall thereafter bear interest at a rate per annum equal to the
Applicable Margin plus, for each Lender, the cost to such Lender (expressed as a
rate per annum) of funding its Eurocurrency Rate Advances by whatever means it
reasonably determines to be appropriate. Each Lender shall certify its cost of
funds for each such Interest Period to the Administrative Agent and the Borrower
as soon as practicable (but in any event not later than ten Business Days after
the first day of such Interest Period).
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurocurrency Rate Advances made or to be made in
accordance with the provisions contained in the definition of "Interest Period"
set forth in Section 1.01, the Administrative Agent will forthwith so notify the
Borrower and the Lenders and such Eurocurrency Rate Advances will automatically,
on the last day of the then existing Interest Period therefor, Convert into
Eurocurrency Rate Advances denominated in the same currency for an Interest
Period of one month.
(d) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Revolving Credit Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $1,500,000, such
Advances shall automatically (i) if such Eurocurrency Rate Advances are
denominated in US Dollars, Convert into Base Rate Advances and (ii) if such
Eurocurrency Rate Advances are denominated in a Foreign Currency, be exchanged
for an Equivalent amount of US Dollars and Converted into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default under Section 6.01(a), (i) each Eurocurrency Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
(A) if such Eurocurrency Rate Advance is denominated in US Dollars, Convert into
a Base Rate Advance and (B) if such Eurocurrency Rate Advance is denominated in
a Foreign Currency, be exchanged for an Equivalent amount of US Dollars and
Converted into a Base Rate Advance and (ii) the obligation of the Lenders to
make, or to Convert Advances into, Eurocurrency Rate Advances shall be
suspended.
(f) If fewer than two Reference Banks furnish timely information to
the Administrative Agent for determining the Eurocurrency Rate for any
Eurocurrency Rate Advances in accordance with clause (b) of the definition
thereof set forth in Section 1.01:
(i) the Administrative Agent shall forthwith notify the Borrower and
the Lenders that the interest rate cannot be determined for such
Eurocurrency Rate Advances;
(ii) each such Eurocurrency Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, (A) if such
Eurocurrency Rate Advance is
28
denominated in US Dollars, Convert into a Base Rate Advance and (B) if such
Eurocurrency Rate Advance is denominated in a Foreign Currency, be
exchanged for an Equivalent amount of US Dollars and Converted 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 Eurocurrency Rate
Advances or to Convert Revolving Credit Advances into Eurocurrency Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances. The
------------------------------------------------
Borrower may on any Business Day, upon notice given to the Administrative 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
2.08, 2.09 and 2.12, Convert all Revolving Credit Advances of one Type
comprising the same Borrowing into Revolving Credit Advances of the other Type;
provided, however, that:
(a) No Conversion of Revolving Credit Advances shall result (i) in
any Revolving Credit Borrowing failing to comply with the second sentence
of Section 2.01 or in more separate Revolving Credit Borrowings than are
permitted under Section 2.02(b) or (ii) in the aggregate principal amount
of all Advances outstanding at the time of such Conversion exceeding the
aggregate Commitments at such time;
(b) No Eurocurrency Rate Advances of one currency shall be Converted
into Eurocurrency Rate Advances of another currency; and
(c) In the case of any Conversion of Eurocurrency Rate Advances of
one Interest Period into Eurocurrency Rate Advances of another Interest
Period or of Eurocurrency Rate Advances into Base Rate Advances other than
on the last day of an Interest Period therefor, the Borrower shall be
obligated to reimburse the Lenders in respect thereof pursuant to Section
8.04(c).
Each such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion (which shall be a Business Day), (ii)
the Revolving Credit Advances to be Converted, and (iii) if such Conversion is
into Eurocurrency Rate Advances, the currency and the duration of the initial
Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
SECTION 2.10. Prepayments of Revolving Credit Advances. (a)
----------------------------------------
Optional. The Borrower may, upon at least the same Business Day's notice to the
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Administrative Agent received not later than 11:00 A.M. (New York City time) in
the case of a Revolving Credit Borrowing consisting of Base Rate Advances, and
upon at least two Business Days' notice to the Administrative Agent received not
later than 11:00 A.M. (New York City time) in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances, stating the proposed date
and aggregate principal amount of the prepayment, and if such notice is given
the Borrower shall, prepay the outstanding principal amount of the Revolving
Credit Advances comprising part of the same Revolving Credit Borrowing in whole
or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount so prepaid; provided, however, that (a) each
partial prepayment shall be in an aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof (or, in each case, the Equivalent
29
thereof in the Foreign Currency in which such Revolving Credit Borrowing is
denominated, determined on the date on which the related notice of prepayment is
given) and (b) in the case of any such prepayment of a Eurocurrency Rate Advance
other than on the last day of the then existing Interest Period therefor, the
Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant
to Section 8.04(c).
(b) Mandatory Prepayments. If, on any date, the Administrative Agent
---------------------
notifies the Borrower that (i) the sum of (A) the aggregate principal amount of
all Advances denominated in US Dollars and outstanding on such date and (B) the
Equivalent in US Dollars of the aggregate principal amount of all Advances
denominated in Foreign Currencies and outstanding on such date exceeds (ii) 101%
of the aggregate Commitments on such date, then the Borrower agrees to prepay,
as soon as practicable and in any event within two Business Days of such notice,
the principal amount of any Advances then outstanding in an amount sufficient to
reduce such sum to an amount not to exceed 100% of the aggregate Commitments on
such date, together with (i) any interest accrued to the date of such prepayment
on the aggregate principal amount of Advances so prepaid and (ii) in the case of
any prepayment of Eurocurrency Rate Advances other than on the last day of the
then existing Interest Period therefor, any amounts which the Borrower is
required to reimburse the Lenders for in respect thereof pursuant to Section
8.04(c). The Administrative Agent shall give prompt notice of any prepayment
required under this Section 2.10(b) to the Borrower and the Lenders, and shall
provide prompt notice to the Borrower of any such notice of required prepayment
received by it from any Lender.
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
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introduction of or any change (other than any change by way of imposition or
increase of reserve requirements included in the Eurocurrency Rate Reserve
Percentage) in or in the interpretation of any law or regulation after the date
of this Agreement or (ii) the compliance with any directive, guideline or
request from any central bank or other governmental authority that becomes
effective or is made after the date of this Agreement including, without
limitation, any agency of the European Economic and Monetary 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 Eurocurrency Rate Advances (excluding for
purposes of this Section 2.11 any such increased costs resulting from (i) Taxes
or Other Taxes (as to which Section 2.14 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 Borrower agrees to pay to the Administrative
Agent for the account of such Lender from time to time, upon demand by such
Lender (with a copy of such demand to the Administrative Agent) at any time
within 120 days after the date on which a Responsible Bank Officer of such
Lender knows or has reason to know of its right to additional compensation under
this Section 2.11(a), additional amounts sufficient to compensate such Lender
for such increased cost; provided, however, that if any such Lender fails to
deliver such demand within such 120-day period, such Lender shall only be
entitled to additional compensation for any such costs incurred from and after
the date that is 120 days prior to the date such Lender delivers such demand;
and provided further, 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 Borrower and the Administrative
Agent by such Lender, shall be conclusive and binding for all purposes, absent
demonstrable error.
30
(b) If any Lender determines that compliance with any law or
regulation, or any directive, guideline or request from any central bank or
other governmental authority that becomes effective or is made after the date of
this Agreement (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 Borrower agrees to pay to the
Administrative Agent for the account of such Lender, upon demand by such Lender
(with a copy of such demand to the Administrative Agent) at any time within 120
days after the date on which a Responsible Bank Officer of such Lender knows or
has reason to know of its right to additional compensation under this Section
2.11(b), 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; provided, however, that if any
such Lender fails to deliver such demand within such 120-day period, such Lender
shall only be entitled to additional compensation for any such increases in
capital required from and after the date that is 120 days prior to the date such
Lender delivers such demand. A certificate as to such amounts submitted to the
Borrower and the Administrative Agent by such Lender shall be conclusive and
binding for all purposes, absent demonstrable error.
(c) Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has actual knowledge occurring
after the date of this Agreement that would entitle such Lender to additional
compensation under this Section 2.11. No Lender shall request any additional
compensation under this Section 2.11 unless it is generally making similar
requests of other borrowers similarly situated, and each Lender agrees to use a
reasonable basis for calculating amounts allocable to its commitment to lend or
its Advances hereunder.
SECTION 2.12. Illegality. Notwithstanding any other provision of
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this Agreement, if any Lender shall notify the Administrative 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 Eurocurrency
Lending Office to perform its obligations hereunder to make Eurocurrency Rate
Advances or to fund or maintain Eurocurrency Rate Advances, (i) each
Eurocurrency Rate Advance will automatically, on the last day of the Interest
Period then in effect therefor if permitted by applicable law or otherwise upon
demand, (A) if such Advance is a Eurocurrency Rate Advance denominated in US
Dollars, Convert into a Base Rate Advance and (B) if such Advance is a
Eurocurrency Rate Advance denominated in a Foreign Currency, be exchanged for an
Equivalent amount of US Dollars and Converted into a Base Rate Advance, and (ii)
the obligation of the Lenders to make Eurocurrency Rate Advances or to Convert
Revolving Credit Advances into Eurocurrency Rate Advances shall be suspended
until the Administrative Agent shall notify the Borrower and the Lenders that
the circumstances causing such suspension no longer exist; 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 Eurocurrency Lending Office if the making of such a
designation would allow such Lender or its Eurocurrency Lending Office to
continue to perform its obligations to make Eurocurrency Rate Advances or to
continue to fund or maintain Eurocurrency Rate Advances and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.13. Payments and Computations. (a) The Borrower shall make
-------------------------
each payment required to be made by it hereunder and under the Notes, except
with respect to principal of, interest on and other amounts relating to
Revolving Credit Advances denominated in a Foreign Currency,
31
not later than 11:00 A.M. (New York City time) on the day when due in US Dollars
to the Administrative Agent at the applicable Administrative Agent's Account, in
same day funds. The Borrower shall make each payment required to be made by it
hereunder and under the Notes with respect to principal of, interest on and
other amounts relating to Revolving Credit Advances denominated in a Foreign
Currency not later than 11:00 A.M. (at the Payment Office for such Foreign
Currency) on the day when due in such Foreign Currency to the Administrative
Agent at the applicable Administrative Agent's Account, in same day funds. The
Administrative Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or the Facility Fee or the
Utilization Fee ratably (other than amounts payable pursuant to Section 2.02(c),
2.03, 2.07(c), 2.11, 2.14, 2.16, 8.04 or 8.07) 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 its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 8.07(c), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder and
under the 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. Upon any Assuming Lender becoming a
Lender hereunder as a result of a Commitment Increase pursuant to Section 2.16,
and upon the Administrative Agent's receipt of such Lender's Assumption
Agreement and recording the information contained therein in the Register from
and after the applicable Increase Date, the Administrative Agent shall make all
payments hereunder and under the Notes in respect of the interest assumed
thereby to the Assuming Lender.
(b) All computations of interest based on clause (a) of the
definition of "Base Rate" set forth in Section 1.01 shall be made by the
Administrative 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 Eurocurrency Rate or the
Federal Funds Rate or in respect of Competitive Bid Advances and of Facility
Fees and Utilization Fees shall be made by the Administrative Agent, and all
computations of additional interest pursuant to Section 2.07(c) shall be made by
a Lender, 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
Administrative Agent (or, in the case of Section 2.07(c), by a Lender) of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
demonstrable error.
(c) 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 fees, as the case may be;
provided, however, that, if such extension would cause payment of interest on or
principal of Eurocurrency Rate Advances to be made in the next following
calendar month, such payment shall be made on the immediately preceding Business
Day.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which such payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative 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 Borrower shall not have so made such payment in full to the
32
Administrative Agent, each Lender shall repay to the Administrative 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 Administrative
Agent, at the higher of (i) the Federal Funds Rate and (ii) the cost of funds
incurred by the Administrative Agent in respect of such amount.
(e) To the extent that the Administrative Agent receives funds for
application to the amounts owing by the Borrower under or in respect of this
Agreement or any Note in currencies other than the currency or currencies
required to enable the Administrative Agent to distribute funds to the Lenders
in accordance with the terms of this Section 2.13, the Administrative Agent
shall be entitled to convert or exchange such funds into US Dollars or into a
Foreign Currency, as the case may be, to the extent necessary to enable the
Administrative Agent to distribute such funds in accordance with the terms of
this Section 2.13; provided that the Borrower and each of the Lenders hereby
agree that the Administrative Agent shall not be liable or responsible for any
loss, cost or expense suffered by the Borrower or such Lender as a result of any
conversion or exchange of currencies effected pursuant to this Section 2.13(e)
or as a result of the failure of the Administrative Agent to effect any such
conversion or exchange; and provided further that the Borrower agrees to
indemnify the Administrative Agent for any and all losses, costs and reasonable
expenses incurred by the Administrative Agent for any conversion or exchange of
currencies (or the failure to convert or exchange any currencies) in accordance
with this Section 2.13(e).
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower
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hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Administrative
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 Administrative 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 (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being collectively referred to as "TAXES"). If the
Borrower shall be required by applicable law to deduct any Taxes from or in
respect of any sum paid or payable hereunder or under any Note to any Lender or
the Administrative 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 2.14) such Lender or
the Administrative Agent, as the case may be, receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law. Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 8.02(a), the original or a certified copy of a receipt evidencing
payment thereof.
(b) In addition, the Borrower agrees to 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
from the execution, delivery or registration of, or any performance under, or
otherwise with respect to, this Agreement or the Notes (collectively, "OTHER
TAXES").
33
(c) The Borrower agrees not to make, and not to permit any Person
acting on its behalf to make, any payments hereunder or under the Notes through
an account or branch outside the United States, and further agrees that no
payments hereunder or under the Notes shall be made on its behalf by a payor
that is not a United States person. For purposes of this Section 2.14(c) and
Section 2.14(e), the terms "United States" and "United States person" shall have
the meanings specified in Section 7701 of the Internal Revenue Code.
(d) The Borrower shall indemnify each Lender and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any taxes imposed by any jurisdiction on amounts payable under this
Section 2.14) imposed on or paid by such Lender or the Administrative Agent, as
the case may be, and any liability (including, without limitation, 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
Administrative Agent, as the case may be, makes written demand therefor.
(e) Each Lender organized under the laws of a jurisdiction outside
the United States shall (i) 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 Assignment and Acceptance or the Assumption Agreement, as the case may be,
pursuant to which it becomes a Lender in the case of each other Lender and (ii)
from time to time thereafter upon the obsolescence of, or after a Responsible
Bank Officer obtains actual knowledge of the occurrence of an event or
circumstance necessitating a change in, the Internal Revenue Service forms
hereinafter referred to (but only so long as such Lender remains lawfully able
to do so), provide each of the Administrative Agent and the Borrower with two
original Internal Revenue Service forms 1001 or 4224, 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 pursuant to this Agreement or the Notes. If the
forms 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;
provided, however, that, if at the date of the Assignment and Acceptance or the
Assumption Agreement, as the case may be, pursuant to which a Lender assignee
becomes a party to this Agreement, the Lender assignor was entitled to payments
under Section 2.14(a) in respect of United States withholding tax with respect
to interest paid at such date, then, to such extent, the term "Taxes" shall
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 Section 2.14(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 1001 or
4224, that the Lender reasonably considers to be confidential, the Lender shall
give notice thereof to the Borrower and shall not be obligated to include in
such form or document such confidential information; provided, however, that
notwithstanding any of the provisions of Section 2.14(d), such Lender shall not
be entitled to indemnification under Section 2.14(a) or 2.14(d) with respect to
Taxes imposed by the United States that become payable because such information
is not provided to the Borrower.
(f) Each Initial Lender hereby confirms as of the Effective Date, and
each other Lender hereby confirms as of the effective date of the Assignment and
Acceptance or the Assumption Agreement, as the case may be, pursuant to which it
became a Lender, in favor of the Administrative Agent, that either (i) such
Lender is not resident in the United Kingdom and is beneficially entitled to the
Advances and the interest thereon or (ii) such Lender is a bank as defined for
the purposes of Section 349
34
of the Income and Corporation Taxes Act of 1988 of the United Kingdom and is
beneficially entitled to the Advances and the interest thereon, and each Lender
hereby agrees to notify the Administrative Agent if there is any change in its
position from that set forth above in this Section 2.14(f).
(g) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 2.14(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of Section 2.14(e)),
notwithstanding any of the provisions of Section 2.14(d), such Lender shall not
be entitled to indemnification under Section 2.14(a) or 2.14(d) with respect to
Taxes imposed by the United States that become payable by reason of such
failure; provided, however, that should a Lender become subject to Taxes because
of its failure to deliver a form required hereunder, the Borrower shall take
such steps as the Lender shall reasonably request and, to the extent any such
steps require the expenditure of money, at the expense of such Lender, to assist
the Lender to recover such Taxes.
(h) Any Lender claiming any additional amounts payable pursuant to
this Section 2.14 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurocurrency 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 2.15. Sharing of Payments, Etc. If any Lender shall obtain
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any payment (whether voluntary, involuntary, through the exercise of any right
of setoff, or otherwise) on account of the Revolving Credit Advances owing to it
(other than pursuant to Section 2.02(c), 2.07(c), 2.11, 2.14, 2.16, 8.04 or
8.07) in excess of its ratable share of payments on account of the Revolving
Credit Advances obtained by all the Lenders, such Lender shall forthwith
purchase from the other Lenders such participations in the Revolving Credit
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 (a) the amount of such Lender's required
repayment to (b) 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. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.15
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of setoff) with respect to the participation as fully as if
such Lender were the direct creditor of the Borrower in the amount of the
participation.
SECTION 2.16. Increase in the Aggregate Commitments. (a) The
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Borrower may, at any time but in any event not more than once in any calendar
year prior to the Revolver Termination Date, by notice to the Administrative
Agent, request that the aggregate amount of the Commitments be increased by
$14,000,000 or an integral multiple of $14,000,000 in excess thereof (each a
"COMMITMENT INCREASE") to be effective as of a date that is at least 90 days
prior to the scheduled Revolver Termination Date then in effect (the "INCREASE
DATE") as specified in the related notice to the Administrative Agent; provided,
however, that (i) in no event shall the aggregate amount of the Commitments at
any time exceed $245,000,000, (ii) the Borrower shall concurrently request that
the aggregate commitments of the
35
lenders under the 364-Day Credit Agreement be ratably increased based on the
respective aggregate Commitments of the Lenders hereunder and the aggregate
commitments of the lenders under the 364-Day Credit Agreement, and such
requested increase under the 364-Day Credit Agreement shall become effective on
the applicable Increase Date, (iii) no Default or Event of Default shall have
occurred and be continuing as of the date of such request and (iv) all of the
applicable conditions set forth in Article III shall be satisfied as of the
applicable Increase Date.
(b) The Administrative Agent shall promptly notify the Lenders of a
request by the Borrower 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 Administrative 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 Administrative 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 Borrower and the
Administrative Agent.
(c) Promptly following each Commitment Date, the Administrative
Agent shall notify the Borrower 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 Borrower 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, when aggregated with the commitment of such Person to lend
under the 364-Day Credit Agreement, shall in no event be less than $10,000,000.
(d) On each Increase Date, each Eligible Assignee that accepts an
offer to participate in a requested Commitment Increase in accordance with
Section 2.16(c) (each 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
2.16(b)) as of such Increase Date; provided, however, that the Administrative
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
the Borrower or the Executive Committee of such board approving the
Commitment Increase and the corresponding modifications to this Agreement,
(B) a certificate, signed by a duly authorized Responsible Officer of the
Borrower, stating that all of the applicable conditions in Article III have
been satisfied and (C) an opinion of counsel for the Borrower, in
substantially the form of Exhibit C hereto;
(ii) an Assumption Agreement from each Assuming Lender, duly executed
by such Assuming Lender, the Administrative Agent and the Borrower; and
36
(iii) confirmation from each Increasing Lender of the increase in the
amount of its Commitment in a writing satisfactory to the Borrower and the
Administrative Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.16(d), the Administrative Agent
shall notify the Lenders (including, without limitation, each Assuming Lender)
and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier or
telex, 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. In
addition, on each Increase Date, each of the Increasing Lenders and the Assuming
Lenders will purchase and assume from the other Lenders such interests in the
Revolving Credit Advances made by such other Lenders and outstanding on such
Increase Date as shall be necessary so that, after giving effect to such
purchases and assumptions, each of the Lenders (including the Increasing Lenders
and the Assuming Lenders) will hold their respective Pro Rata Shares of all
Revolving Credit Advances outstanding on such Increase Date (such purchases and
assumptions to be effected by each of the Increasing Lenders and the Assuming
Lenders making an amount equal to such respective Pro Rata Shares available for
the accounts of their Applicable Lending Offices to the Administrative Agent at
the applicable Administrative Agent's Accounts, in same day funds). The Borrower
hereby agrees to each of the purchases and assumptions described in the
immediately preceding sentence.
SECTION 2.17. Substitution of Currency. If the euro or any other
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single or unified European currency is implemented pursuant to the commencement
of the third stage of the Economic and Monetary Union (as contemplated in the
Treaty on European Union) or any other change in any Foreign Currency occurs
pursuant to any other applicable law, rule or regulation of any governmental,
monetary or multinational authority, this Agreement (including, without
limitation, the definition of Eurocurrency Rate) will be amended to the extent
determined by the Administrative Agent (acting reasonably and in consultation
with the Borrower) to be necessary to reflect the change in currency and to put
the Lenders and the Borrower in the same position, so far as possible, that they
would have been in if no implementation of the euro or such other single or
unified European currency or other change in such Foreign Currency, as the case
may be, had occurred.
SECTION 2.18. Use of Proceeds. The proceeds of the Advances shall be
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available, and the Borrower agrees that it shall use such proceeds, solely for
general corporate purposes (including, without limitation, acquisitions of the
shares of capital stock of (or other ownership or profit interests in), or all
or any portion of the property and assets of, any Person, and the refinancing of
other Indebtedness of the Borrower) not otherwise prohibited under the terms of
this Agreement.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
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and 2.03. Sections 2.01 and 2.03 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, 1997.
37
(b) There shall exist no action, suit, investigation, litigation,
arbitration or proceeding (including, without limitation, any Environmental
Action) affecting the Borrower or any of its Subsidiaries pending or, to
the knowledge of the Borrower, threatened before any court, governmental
agency or arbitrator that (i) either individually or in the aggregate,
could be reasonably expected to have a Material Adverse Effect other than
the matters described on Schedule 3.01(b) hereto (the "DISCLOSED
LITIGATION") or (ii) purports to adversely 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 Borrower or any of its
Subsidiaries, of the Disclosed Litigation from that described on Schedule
3.01(b) hereto.
(c) All governmental and third party consents and approvals necessary
in connection with this Agreement and the Notes and with the transactions
contemplated hereby shall have been obtained (without the imposition of any
conditions that are not reasonably 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 on this Agreement or any Note or upon any of
the transactions contemplated hereby.
(d) All accrued fees and reasonable out-of-pocket expenses of the
Administrative Agent (including, without limitation, all reasonable accrued
fees and expenses of counsel for the Administrative Agent for which a
reasonably detailed invoice has been delivered to the Borrower at least two
Business Days prior to the Effective Date) shall have been paid in full.
(e) All amounts owing by the Borrower or any of its Subsidiaries
under either of the Existing Credit Agreements shall have been, or
concurrently with any initial Borrowing made on the Effective Date shall
be, paid in full, and all commitments of the lenders thereunder shall have
been, or concurrently with any initial Borrowing made on the Effective Date
shall be, terminated in accordance with the terms of such Agreement.
(f) On the Effective Date, the following statements shall be true and
the Administrative Agent shall have received for the account of each Lender
a certificate signed by a duly authorized Responsible Officer of the
Borrower, dated such date, stating that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, as though made on
and as of such date;
(ii) No event has occurred and is continuing, or shall occur as
a result of the occurrence of the Effective Date, that constitutes a
Default; and
(iii) The conditions precedent set forth in subsections (a)
through (f) of this Section 3.01 have been satisfied.
(g) The Administrative Agent shall have received on or before the
Effective Date the following, each dated such date, in form and substance
satisfactory to the Administrative Agent and (except for the Revolving
Credit Notes) in sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order of each of the
Lenders, respectively.
38
(ii) A certificate of the Secretary or an Assistant Secretary of
the Borrower certifying (A) appropriate resolutions of the Board of
Directors of the Borrower approving this Agreement and the Notes, and
of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and the
Notes and (B) the names and true signatures of the officers of the
Borrower authorized to sign this Agreement and the Notes and the other
documents to be delivered by the Borrower hereunder.
(iii) Favorable opinions of an Assistant General Counsel for the
Borrower, in substantially the form of Exhibit D-1 hereto, and of
Sidley & Austin, special counsel for the Borrower, in substantially
the form of Exhibit D-2 hereto.
(iv) A favorable opinion of Shearman & Sterling, counsel for the
Administrative Agent.
SECTION 3.02. Conditions Precedent to Each Revolving Credit
---------------------------------------------
Borrowing. The obligation of each Lender to make a Revolving Credit Advance on
---------
the occasion of each Revolving Credit Borrowing shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date
of such Revolving Credit Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of Revolving Credit Borrowing and
the acceptance by the Borrower of the proceeds of such Revolving Credit
Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Revolving Credit Borrowing such statements are true):
(a) The representations and warranties contained in Section 4.01
(except for the representation and warranty set forth in clause (i) of
Section 4.01(f)) are correct on and as of the date of such Revolving Credit
Borrowing, before and after giving effect to such Revolving Credit
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 Revolving Credit Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing.
------------------------------------------------------
The obligation of each Lender that is to make a Competitive Bid Advance as part
of any Competitive Bid Borrowing is subject to the conditions precedent that (a)
the Administrative Agent shall have received the written confirmatory Notice of
Competitive Bid Borrowing with respect thereto, (b) on or before the date of
such Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing, the
Administrative Agent shall have received a Competitive Bid Note payable to the
order of such Lender for each of the one or more Competitive Bid Advances to be
made by such Lender as part of such Competitive Bid Borrowing, dated such date
and in a principal amount equal to the principal amount of the Competitive Bid
Advance to be evidenced thereby and otherwise on such terms as were agreed to
for such Competitive Bid Advance in accordance with Section 2.03, and (c) on the
date of such Competitive Bid Borrowing the following statements shall be true
(and each of the giving of the applicable Notice of Competitive Bid Borrowing
and the acceptance by the Borrower of the proceeds of such Competitive Bid
Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Competitive Bid Borrowing such statements are true):
39
(i) The representations and warranties contained in Section 4.01
(except for the representation and warranty set forth in clause (i) of
Section 4.01(f)) are correct on and as of the date of such Competitive Bid
Borrowing, before and after giving effect to such Competitive Bid Borrowing
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 Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
SECTION 3.04. Conditions Precedent to Each Increase Date. The
------------------------------------------
obligation of each Increasing Lender and each Assuming Lender to effect a
Commitment Increase pursuant to Section 2.16 is subject to the conditions
precedent that (a) the Administrative Agent shall have accepted all of the
Assumption Agreements of the Assuming Lenders and received all of the written
confirmations of increases in the Commitments of the Increasing Lenders for such
Increase Date, (b) on or before such Increase Date, the Administrative Agent
shall have received Revolving Credit Notes payable, in the case of each
Commitment Increase, to the order of each Increasing Lender and each Assuming
Lender, and dated such date and in a principal amount equal to the Commitment of
such Lender on such date (after giving effect to the related Commitment
Increase), and (c) on such Increase Date, the following statements shall be true
(and a duly authorized Responsible Officer of the Borrower shall certify the
completeness and accuracy of such statements to the Administrative Agent and the
Lenders on and as of such Increase Date):
(i) There shall have occurred no Material Adverse Change since
December 31, 1997;
(ii) The representations and warranties contained in Section 4.01
shall be correct on and as of such Increase Date, before and after giving
effect to such date, as though made on and as of such date; and
(iii) No event shall have occurred and be continuing, or shall result
from the occurrence of such Increase Date, that constitutes a Default.
SECTION 3.05. 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 Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Lender prior to the date
that the Borrower, by notice to the Lenders, designates as the proposed
Effective Date, specifying its objection thereto. The Administrative 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 Borrower. The
----------------------------------------------
Borrower represents and warrants as follows:
40
(a) The Borrower and each of the Material Subsidiaries (i) are
corporations, limited partnerships or limited liability companies duly
organized, validly existing and, to the extent applicable, in good standing
under the laws of their respective jurisdictions of organization, (ii) to
the extent applicable, are duly qualified and in good standing as foreign
corporations, limited partnerships or limited liability companies in each
other jurisdiction in which they own or lease property or assets or in
which the conduct of their respective businesses requires them to so
qualify or be licensed, except where the failure to so qualify or be
licensed, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, and (iii) have all requisite
power and authority to own or lease and operate their respective property
and assets and to carry on their respective businesses as conducted.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes, and the consummation of the transactions
contemplated hereby, are within the Borrower's corporate, partnership or
limited liability company powers, have been duly authorized by all
necessary action, and do not contravene (i) the Borrower's charter or by-
laws (or similar organizational documents) or (ii) any law, regulation,
judgment, order, writ, injunction, decree, determination or award or any
contractual restriction binding on or affecting the Borrower.
(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 Borrower of this Agreement or any Note.
(d) This Agreement has been, and each of the Notes when delivered
hereunder will have been, duly executed and delivered by the Borrower.
This Agreement is, and each of the Notes when delivered hereunder will be,
the legal, valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with their respective terms, except to
the extent that the enforceability thereof may be limited by the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect relating to or affecting creditors'
rights generally or by general principles of equity.
(e) (i) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1997, and the related Consolidated
statements of income, retained earnings and cash flows of the Borrower and
its Subsidiaries for the fiscal year then ended, accompanied by an
unqualified opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., independent public
accountants, and (ii) the Consolidated balance sheet of the Borrower and
its Subsidiaries as at March 31, 1998, and the related Consolidated
statements of income, retained earnings and cash flows of the Borrower and
its Subsidiaries for the three months then ended, duly certified by the
Chief Financial Officer of the Borrower, copies of all of which have been
furnished to each Lender, fairly present, subject, in the case of such
balance sheet as at March 31, 1998 and such related statements of income,
retained earnings and cash flows for the three months then ended, to year-
end audit adjustments, the Consolidated financial condition of the Borrower
and its Subsidiaries as at such dates and the Consolidated results of the
operations of the Borrower and its Subsidiaries for the period ended on
such dates, all in accordance with generally accepted accounting principles
consistently applied.
41
(f) There is no action, suit, investigation, litigation, arbitration
or proceeding (including, without limitation, any Environmental Action)
affecting the Borrower or any of its Subsidiaries pending or, to the
knowledge of the Borrower, threatened before any court, governmental agency
or arbitrator that (i) either individually or in the aggregate, could be
reasonably expected to have a Material Adverse Effect other than the
Disclosed Litigation or (ii) purports to adversely affect the legality,
validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(g) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying "margin stock" (within the
meaning of Regulation U of the Board of Governors of the Federal Reserve
System). Following application of the proceeds of each Advance, not more
than 25% of the value of the property and assets of the Borrower, either
individually or together with its Subsidiaries, taken as a whole, subject
to the provisions of Section 5.02(a) or subject to any restriction
contained in any agreement or instrument between the Borrower and any
Lender or any Affiliate of any Lender relating to Indebtedness and within
the scope of Section 6.01(d) will be "margin stock" (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System).
(h) All information, exhibits and reports furnished by or on behalf
of the Borrower or any of its Subsidiaries to the Administrative Agent and
the Lenders in connection with the negotiation of, or pursuant to the terms
of, this Agreement or any Note do not, considered as a whole, contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements made therein, in light of the
circumstances under which any such statements were made, not misleading (it
being understood that with respect to projections, such projections are
good faith estimates based on assumptions believed to be reasonable by the
Borrower at the time of delivery of such projections to the Administrative
Agent and the Lenders and that no assurances can be given that the results
set forth in the projections will actually be obtained).
(i) No ERISA Event has occurred or could reasonably be expected to
occur with respect to any Plan.
(j) To the extent an annual report (Form 5500 Series) is required to
be filed, Schedule B (Actuarial Information) to the most recent such annual
report for each Plan, copies of which have been filed with the Internal
Revenue Service and furnished to the Lenders, is complete and accurate and
fairly presents the funding status of such Plan; and since the date of such
Schedule B there has been no material adverse change in such funding
status.
(k) Neither the Borrower nor any ERISA Affiliate (i) has incurred or
could reasonably be expected to incur any Withdrawal Liability with respect
to any Multiemployer Plan or (ii) has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or has
been terminated, within the meaning of Title IV of ERISA; and, to the
knowledge of the Borrower, no such Multiemployer Plan could reasonably be
expected to be in reorganization or to be terminated, within the meaning of
Title IV of ERISA.
(l) The operations and properties of the Borrower and its
Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits.
42
(m) None of the properties owned or operated by the Borrower or its
Subsidiaries is listed or, to the knowledge of the Borrower, is proposed
for listing on the NPL or on the CERCLIS or any analogous foreign, state or
local list; there are no and never have been any underground or aboveground
storage tanks or any surface impoundments, septic tanks, pits, sumps or
lagoons in which Hazardous Materials are being or have been treated, stored
or disposed on any property owned or operated by the Borrower or any of its
Subsidiaries that, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(n) Neither the Borrower nor its Subsidiaries is undertaking, and has
not completed, either individually or together with other potentially
responsible parties, any investigation, assessment or remedial or response
action relating to any actual or threatened release, discharge or disposal
of Hazardous Materials at any site, location or operation, either
voluntarily or pursuant to the order of any governmental or regulatory
authority or the requirements of any Environmental Law, that, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(o) The proceeds of the Advances shall be available, and the Borrower
agrees that it shall use such proceeds, solely for general corporate
purposes (including, without limitation to, acquisitions of the shares of
capital stock of (or other ownership or profit interests in), or all or any
portion of the property and assets of any Person, and the refinancing of
other Indebtedness of the Borrower) not otherwise prohibited under the
terms of this Agreement.
(p) Neither the Borrower nor any of the Material Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company" (each as defined in
the Investment Company Act of 1940, as amended). Neither the making of any
Advances nor the application of the proceeds or repayment thereof by the
Borrower, nor the consummation of the other transactions contemplated
hereby, will violate any provision of such Act or any rule, regulation or
order of the Securities and Exchange Commission thereunder.
(q) The Advances and all related obligations of the Borrower under
this Agreement and the Notes rank pari passu with all other unsecured
obligations of the Borrower that are not, by their terms, expressly
subordinate to such other obligations of the Borrower.
(r) The Borrower has (i) initiated a review and assessment of all
areas within its and each of its Subsidiaries' business and operations
(including, to the extent the Borrower deems appropriate, those affected by
suppliers, vendors and customers) that could be adversely affected by the
"Year 2000 Problem" (that is, the risk that computer applications used by
the Company or any of its Subsidiaries may be unable to recognize and
perform properly date-sensitive functions involving certain dates prior to
and any date after December 31, 1999), (ii) developed a plan for addressing
the Year 2000 Problem on a timely basis, and (iii) to date, has initiated
implementation of that plan. Based on the foregoing, the Borrower believes
that all computer applications that are material to its or any of its
Subsidiaries' business and operations are reasonably expected on a timely
basis to be able to perform properly date-sensitive functions for all dates
before and after January 1, 2000 (that is, be "Year 2000 compliant"),
except to the extent that a failure to do so could not reasonably be
expected to have Material Adverse Effect.
43
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
---------------------
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
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 where the failure to so comply, either
individually or in the aggregate, could 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
Borrower nor any of its Subsidiaries shall be required to pay or discharge
any such tax, assessment, charge, levy or claim that is being contested in
good faith and by proper proceedings and as to which appropriate reserves
are being maintained, unless and until any Lien resulting therefrom
attaches to its property and enforcement, collection, execution, levy or
foreclosure proceedings shall have been commenced with respect to one or
more such taxes, assessments, charges, levies or claims that, either
individually or in the aggregate, are material.
(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 the Borrower believes in good faith is usually carried by companies
engaged in similar businesses and owning similar properties in the same
general areas in which the Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
----------------------------------------
and cause each of its Subsidiaries to preserve and maintain, its existence,
rights (charter and statutory) and franchises; provided, however, that the
Borrower and its Subsidiaries may consummate any merger or consolidation
otherwise permitted under Section 5.02(c); and provided further that
neither the Borrower nor any of its Subsidiaries shall be required to
preserve any right or franchise if management of the Borrower shall
determine in good faith that the preservation thereof is no longer
desirable in the conduct of the business or the continued operations of the
Borrower or such Subsidiary, as the case may be, and that the loss thereof
is not disadvantageous in any material respect to the Borrower and its
Subsidiaries taken as a whole, or to the Lenders.
(e) Visitation Rights. At any reasonable time and from time to time,
-----------------
upon notice to the Borrower, permit the Administrative 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, and visit the
properties, of the Borrower and/or any of its Subsidiaries, and to discuss
the affairs, finances and accounts of the Borrower and/or any of its
Subsidiaries with any of their officers or directors and with their
independent public accountants; provided, however, that so long as no
Default under Section 6.01(a) or 6.01(e) or Event of Default has occurred
and is
44
continuing, the Borrower shall have the right to be present at all such
discussions and all such visits shall be at the Administrative Agent's or
the applicable Lender's expense.
(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 Borrower 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 material
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
----------------------------
Subsidiaries 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 Borrower or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a Person not an
Affiliate, other than any transaction or series of related transactions
solely between or among the Borrower and one or more of its Wholly-Owned
Subsidiaries, or solely between or among one or more of the Wholly-Owned
Subsidiaries of the Borrower, in each case to the extent such transaction
or series of related transactions is not otherwise prohibited under the
terms of this Agreement.
(i) Subordination. As promptly as practicable and in any event on or
-------------
prior to September 1, 1998, cause each of the Domestic Subsidiaries to
enter into an agreement to subordinate all of the Indebtedness of the
Borrower owing to such Domestic Subsidiary from time to time to the
obligations of the Borrower under and in respect of this Agreement and the
Notes on the terms set forth in Exhibit E hereto.
(j) Reporting Requirements. Furnish to the Lenders:
----------------------
(i) as soon as available and in any event within 55 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, a Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such quarter and Consolidated statements
of income, retained earnings and cash flows of the Borrower 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
or Treasurer of the Borrower as having been prepared in accordance
with generally accepted accounting principles;
(ii) as soon as available and in any event within 100 days after
the end of each fiscal year of the Borrower, a copy of the annual
audit report for such fiscal year for the Borrower and its
Subsidiaries, containing a Consolidated balance sheet of the Borrower
and its Subsidiaries as of the end of such fiscal year and
Consolidated statements of income, retained earnings and cash flows of
the Borrower and its Subsidiaries for such fiscal year, in each case
accompanied by an unqualified opinion or an opinion otherwise
reasonably acceptable to the Required Lenders by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co.
or other independent public accountants of nationally recognized
standing and reasonably acceptable to the Administrative Agent;
45
(iii) simultaneously with each delivery of the financial
statements referred to in subclauses (j)(i) and (j)(ii) of this
Section 5.01, a certificate of the Chief Financial Officer or the
Treasurer of the Borrower as to compliance with the terms of this
Agreement (including, without limitation, with respect to any
Investment made pursuant to Section 5.02(d)(vii)) and setting forth in
reasonable detail the calculations necessary to demonstrate compliance
with Sections 5.02(b)(iv), 5.02(d)(viii) and 5.03;
(iv) as soon as possible and in any event within five days after
any Responsible Officer knows or has reason to know of the occurrence
of each Default or Event of Default continuing on the date of such
statement, a statement of such Responsible Officer setting forth the
details of such Default or Event of Default and the action that the
applicable Borrower has taken and proposes to take with respect
thereto;
(v) promptly after the sending or filing thereof, copies of all
reports and registration statements, if any, that the Borrower or any
of its Subsidiaries files with the Securities and Exchange Commission
or any national securities exchange;
(vi) promptly after the commencement thereof, notice of all
actions, suits, investigations, litigations, arbitrations and
proceedings before any court, governmental agency or arbitrator
affecting the Borrower or any of its Subsidiaries that (A) either
individually or in the aggregate, could be reasonably expected to have
a Material Adverse Effect other than the Disclosed Litigation or (B)
purports to adversely affect the legality, validity or enforceability
of this Agreement or any Note or the consummation of the transactions
contemplated hereby; and
(vii) such other financial information respecting the Borrower
or any of its Subsidiaries as any Lender through the Administrative
Agent may from time to time reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance shall
------------------
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
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 Subsidiaries to assign, any right to receive income, other
than its
(i) Permitted Liens;
(ii) purchase money Liens upon or in any real property or
equipment acquired or held by the Borrower or any of its Subsidiaries
in the ordinary course of business to secure the purchase price of
such real property or equipment or to secure Indebtedness incurred
solely for the purpose of financing the acquisition of such real
property or equipment, or Liens existing on any such real 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 real property or equipment); provided,
however, that no such Lien shall extend to or cover any property or
assets of any character other than the real property or equipment
being acquired; and
46
provided further that any Indebtedness secured by such Liens shall be
otherwise permitted under the terms of this Agreement;
(iii) Liens on property or assets of a Person (other than the
Borrower or any of its Subsidiaries) existing at the time such
property or asset is purchased or otherwise acquired by the Borrower
or its Subsidiaries; provided that such Liens were not created in
contemplation of such purchase or other acquisition and do not extend
to any property or assets other than those so purchased or otherwise
acquired;
(iv) Liens on property or assets of a Person (other than the
Borrower or any of its Subsidiaries) existing at the time such Person
is merged into or consolidated with the Borrower or any Subsidiary of
the Borrower or becomes a Subsidiary of the Borrower; provided that
such Liens were not created in contemplation of such merger,
consolidation or acquisition and do not extend to any property or
assets other than those of the Person so merged into or consolidated
with, or acquired by, the Borrower or such Subsidiary;
(v) Liens on accounts or notes receivable (whether such
accounts or notes receivable constitute accounts, instruments, chattel
paper or general intangibles) and other related assets, and sales of
or discounts on the foregoing, arising solely in connection with the
securitization thereof (whether in one transaction or in a series of
transactions); provided that the sale or other disposition of any such
accounts or notes receivable and related assets shall be on a "true
sale" basis;
(vi) Liens not otherwise permitted under clauses (i) through
(v) of this Section 5.02(a) securing Indebtedness in an aggregate
principal amount not to exceed $30,000,000 (or the Equivalent thereof
in one or more Foreign Currencies) at any time outstanding; and
(vii) the replacement, extension or renewal of any Lien
otherwise permitted under clauses (ii) through (vi) of this Section
5.02(a) upon or in the same property and assets theretofore subject
thereto; provided that no such extension, renewal or replacement shall
extend to or cover any property not theretofore subject to the Lien
being extended, renewed or replaced; and provided further that any
Indebtedness secured by such Liens shall otherwise be permitted under
the terms of this Agreement.
(b) Subsidiary Indebtedness. Permit any of its Subsidiaries to
-----------------------
create, incur, assume or suffer to exist, any Indebtedness other than:
(i) Indebtedness under this Agreement and the Notes;
(ii) Indebtedness incurred pursuant to the facilities existing
on the date of this Agreement and described on Schedule 5.02(b)
hereto;
(iii) Indebtedness owed to the Borrower or to a Domestic
Subsidiary; provided, however, that (A) any such Indebtedness shall be
incurred in the ordinary course of business and (B) on and after
September 1, 1998, any such Indebtedness of the
47
Borrower shall be subordinated to all of the Borrower's Indebtedness
under this Agreement and the Notes on the same terms as those set
forth in Exhibit E hereto;
(iv) unsecured Indebtedness not otherwise permitted under this
Section 5.02(b) incurred in the ordinary course of business and in an
aggregate amount not to exceed at any time outstanding 20% of
Consolidated Net Worth;
(v) Indebtedness extending the maturity of, or refunding or
refinancing, in whole or in part, any Indebtedness incurred under
clause (ii), (iii) or (iv) of this Section 5.02(b); provided, however,
that the aggregate principal amount of such extended, refunding or
refinancing Indebtedness shall not be increased above the outstanding
principal amount thereof immediately prior to such extension,
refunding or refinancing; and
(vi) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business.
(c) 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 property and assets
(whether now owned or hereafter acquired) to, any Person, or permit any of
its Subsidiaries to do so, except that:
(i) any Subsidiary may merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of all or substantially
all of its property and assets to, any other Wholly-Owned Subsidiary
of the Borrower;
(ii) any Subsidiary of the Borrower may merge or consolidate
with or into, or convey, transfer, lease or otherwise dispose of all
or substantially all of its property and assets to, the Borrower so
long as the Borrower is the surviving corporation;
(iii) subject to the requirements of Section 5.01(h), any
Subsidiary of the Borrower may merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of all or substantially
all of its property and assets to, any Subsidiary of the Borrower that
is not a Wholly-Owned Subsidiary of the Borrower;
(iv) the Borrower may merge with any other Person so long as
the Borrower is the surviving corporation; and
(v) subject to (A) the requirements of Section 5.01(h), (B) a
good faith determination by the Borrower that the continued existence
of such Subsidiary or that the ownership or maintenance of such
property and assets are no longer necessary or desirable in the
conduct of the business or the continued operations of the Borrower
and its Subsidiaries, taken as a whole and (C) compliance with the
covenants set forth in Section 5.03 on a pro forma basis as of the
last day of the Measurement Period most recently ended, any Subsidiary
of the Borrower may merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of all or substantially all of
its property and assets to one or more other Persons;
48
provided that, in the cases of subclauses (iii), (iv) and (v) of this
Section 5.02(c), no Default shall have occurred and be continuing at the
time of such proposed transaction or shall occur as a result thereof.
(d) Investments in Other Persons. Make or hold, or permit any of its
----------------------------
Subsidiaries to make or hold, any Investment in any Person other than:
(i) Investments existing on the date of this Agreement;
(ii) Investments by the Borrower and its Subsidiaries in cash
and Marketable Securities;
(iii) Investments by the Borrower in one or more of its
Subsidiaries to the extent permitted under Section 5.02(b)(iii) or
5.02(b)(v);
(iv) Investments by any Subsidiary of the Borrower in the
Borrower or one or more other Subsidiaries of the Borrower;
(v) loans and advances to employees in the ordinary course of
the business of the Borrower and its Subsidiaries as presently
conducted;
(vi) Investments in account debtors received in connection with
the bankruptcy or reorganization, or in compromise or settlement of
delinquent obligations, of suppliers and customers arising in the
ordinary course of business and in accordance with applicable
collection and credit policies established by the Borrower or such
Subsidiary, as the case may be;
(vii) Investments not otherwise permitted under this Section
5.02(d); provided that in the case of any Investment made under this
clause (vii):
(A) such Investment shall result in (1) the acquisition of
all or substantially all of the assets of a Person or (2) the
acquisition or creation of a Subsidiary of the Borrower, or a
Person that will be or become part of a Subsidiary of the
Borrower, and such Subsidiary shall not have contingent
liabilities on the date of such Investment which could reasonably
be expected to be material to the Borrower and its Subsidiaries,
taken as a whole;
(B) any Subsidiary of the Borrower acquired or created as
a result of or in connection with such Investment shall be
engaged in, and any business acquired or invested in shall be,
substantially the same line of business as the business of the
Borrower and its Subsidiaries conducted at the time of such
Investment in the ordinary course, or a line of business directly
related thereto;
(C) any acquisition of shares of capital stock of (or
other ownership or profit interests in) a Person by the Borrower
or any of its Subsidiaries shall be effected as a Friendly
Acquisition; and
(D) immediately before and after giving effect to each
such Investment, no Default shall have occurred and be
continuing; and
49
(viii) Investments not otherwise permitted under this Section
5.02(d) not to exceed in any fiscal year 30% of Consolidated Net Worth
determined as of the end of the immediately preceding fiscal year;
provided that in the case of any Investment made under this clause
(viii):
(A) such Investment shall not include or result in
contingent liabilities which could reasonably be expected to be
material to the Borrower and its Subsidiaries, taken as a whole;
(B) any business acquired or invested in with (or in
connection with) such Investment shall be in substantially the
same line of business as the business of the Borrower and its
Subsidiaries conducted at the time of such Investment in the
ordinary course, or a line of business directly related thereto;
(C) any acquisition of shares of capital stock of (or
other ownership or profit interests in) a Person by the Borrower
or any of its Subsidiaries shall be effected as a Friendly
Acquisition; and
(D) immediately before and after giving effect to each
such Investment, no Default shall have occurred and be
continuing.
(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 of this Agreement.
(f) Accounting Changes. Make or permit, or permit any of its
------------------
Subsidiaries to make or permit, any changes in its accounting policies or
financial reporting practices (including, without limitation, any changes
in the fiscal year of the Borrower or any of its Subsidiaries), except as
required by generally accepted accounting principles in effect from time to
time.
SECTION 5.03. Financial Covenants. So long as any Advance shall
-------------------
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will:
(a) Consolidated Net Worth. Maintain Consolidated Net Worth at all
----------------------
times of not less than $175,000,000.
(b) Leverage Ratio. Maintain a Leverage Ratio as of the last day of
--------------
each Measurement Period of not more than 3.50:1.
(c) Fixed Charge Coverage Ratio. Maintain a Fixed Charge Coverage
---------------------------
Ratio as of the last day of each Measurement Period of not less than
1.50:1.
50
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) The Borrower shall fail (i) to pay any principal of any Advance
when the same becomes due and payable or (ii) to pay any interest on any
Advance or to make any payment of fees or other amounts payable under this
Agreement or any Note, in each case under this clause (ii) within three
Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein or by
the Borrower (or any of its officers) in connection with this Agreement
shall prove to have been incorrect in any material respect when made; or
(c) The Borrower shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 2.19, 5.01(h), 5.01(i) or
5.01(j), 5.02 or 5.03, (ii) any term, covenant or agreement contained in
Section 5.01(a), (b) or (d) if such failure shall remain unremedied for at
least ten days or (iii) 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 at least 30 days after written notice thereof
shall have been given to the Borrower by the Administrative Agent or any
Lender; or
(d) The Borrower or any of its Material Subsidiaries shall fail to
pay any principal of or premium or interest on any Indebtedness that is
outstanding in a principal amount or, in the case of any Hedge Agreement,
having a maximum Agreement Value, of at least $10,000,000 (or the
Equivalent thereof in one or more Foreign Currencies) in the aggregate (but
excluding Indebtedness outstanding hereunder) of the Borrower 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
Indebtedness; or any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Indebtedness 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
Indebtedness; or any such Indebtedness 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 Indebtedness shall be
required to be made, in each case prior to the stated maturity thereof; or
(e) The Borrower or any of its Material Subsidiaries 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 Borrower or any of its Material 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
51
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 at least 60 days, or any of the actions 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 Borrower or any of its Material Subsidiaries shall take any action
to authorize any of the actions set forth above in this Section 6.01(e); or
(f) One or more judgments or orders for the payment of money in
excess of $10,000,000 (or the Equivalent thereof in one or more Foreign
Currencies) shall be rendered against the Borrower or any of its
Subsidiaries and shall remain unsatisfied 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 at least ten 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
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, as amended), directly or indirectly, of Voting Stock of the Borrower
(or other securities convertible into or exchangeable for such Voting
Stock) representing 35% or more of the combined voting power of all Voting
Stock of the Borrower (on a fully diluted basis); or (ii) during any period
of up to 12 consecutive months, whether commencing before or after the date
of this Agreement, individuals who at the beginning of such 12-month period
were Continuing Directors shall cease for any reason to constitute a
majority of the board of directors of the Borrower; or (iii) any Person or
two or more Persons acting in concert shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of the power to
exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower; or
(h) The Borrower and/or one or more ERISA Affiliates shall incur or
could reasonably be expected to incur liability in excess of $10,000,000
(or the Equivalent thereof in one or more Foreign Currencies) 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 Borrower
or any ERISA Affiliate from a Multiemployer Plan; or (iii) the
reorganization or termination of a Multiemployer Plan;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of the Lenders and 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 Borrower, declare the Notes, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and payable, whereupon
the Notes, 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
52
of which are hereby expressly waived by the Borrower; provided, however, that in
the event of an actual or deemed entry of an order for relief with respect to
the Borrower under the Federal Bankruptcy Code, (A) the Commitments of the
Lenders and the obligation of each Lender to make Advances shall automatically
be terminated and (B) the Notes, 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 Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints
------------------------
and authorizes the Administrative 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 Administrative Agent by the terms hereof, together with such
powers and discretion as are reasonably incidental thereto. As to any matters
not expressly provided for under this Agreement (including, without limitation,
enforcement or collection of the Notes), the Administrative 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 Administrative Agent shall not be required to take
any action (i) that exposes the Administrative Agent to personal liability or
that is contrary to this Agreement or applicable law or (ii) as to which the
Administrative Agent has not received adequate security or indemnity (whether
pursuant to Section 7.05 or otherwise). If the security or indemnity furnished
to the Administrative Agent for any purpose under or in respect of this
Agreement shall, in the good faith opinion of the Administrative Agent, be
insufficient or become impaired, then the Administrative Agent may require
additional security or indemnity and cease, or not commence, to follow the
directions or take the actions indemnified against until such additional
security or indemnity is furnished. The Administrative Agent agrees to give to
each Lender prompt notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither the
------------------------------------
Administrative 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 as determined in a final, nonappealable
judgment by a court of competent jurisdiction. Without limitation of the
generality of the foregoing, the Administrative Agent:
(i) may treat the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note or an Assumption
Agreement entered into by an Assuming Lender, as the case may be, as
assignor, and an Eligible Assignee, as assignee, as provided in Section
8.07 or 2.16;
(ii) may consult with legal counsel (including counsel for the
Borrower), 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;
53
(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 or any Note;
(iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of
this Agreement or any Note on the part of the Borrower or to inspect the
property and assets (including the books and records) of the Borrower;
(v) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of
this Agreement or any Note 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, telegram or telex) believed by it to
be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
-----------------------
Commitment, the Advances made by it and the Note or Notes 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 Administrative 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 Borrower, any of its Subsidiaries and any Person who may do business
with or own securities of the Borrower or any such Subsidiary, all as if
Citibank were not the Administrative Agent and without any duty to account
therefor to the other Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that
----------------------
it has, independently and without reliance upon the Administrative Agent or any
other Lender and based on the financial statements referred to in Section
4.01(e) 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 Administrative 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 7.05. Indemnification. The Lenders agree to indemnify the
---------------
Administrative Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of the Revolving Credit Notes
(determined in the case of any Revolving Credit Advances denominated in a
Foreign Currency and evidenced thereby by reference to the Equivalent thereof in
US Dollars at such time) then held by each of them (or, if no Revolving Credit
Notes are at the time outstanding or if any Revolving Credit Notes are held by
Persons that are not Lenders, ratably according to the respective amounts of
their Commitments at such time), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or any Note or any action taken or
omitted by the Administrative Agent under this Agreement (collectively, the
"LENDER INDEMNIFIED COSTS"); provided that no Lender shall be liable for any
portion of the Lender Indemnified Costs resulting from the Administrative
Agent's gross negligence or willful misconduct as determined in
54
a final, nonappealable judgment by a court of competent jurisdiction. In the
case of any claim, investigation, litigation or proceeding giving rise to any
Lender Indemnified Costs, the indemnification provided by the Lenders under this
Section 7.05 shall apply whether or not any such claim, investigation,
litigation or proceeding is brought by the Administrative Agent, any of the
Lenders or a third party. Without limitation of the foregoing, each Lender
agrees to reimburse the Administrative Agent promptly, upon demand, for its
ratable share of any out-of-pocket costs and expenses (including counsel fees)
incurred by the Administrative Agent in connection with the 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 Administrative Agent is not reimbursed for such expenses by the
Borrower. The failure of any of the Lenders to reimburse the Administrative
Agent promptly upon demand for its ratable share of any amount required to be
paid by the Lenders to the Administrative Agent as provided in this Section 7.05
shall not relieve any of the other Lenders of its obligation hereunder to
reimburse the Administrative Agent for its ratable share of such amount, but
none of the Lenders shall be responsible for the failure of any of the other
Lenders to reimburse the Administrative Agent for such other Lender's ratable
share of such amount. Without prejudice to the survival of any other agreement
of any of the Lenders hereunder, the agreement and obligations of each of the
Lenders contained in this Section 7.05 shall survive the payment in full of all
principal, interest and other amounts payable under this Agreement and the
Notes.
SECTION 7.06. Successor Administrative Agent. The Administrative
------------------------------
Agent may resign at any time by giving written notice thereof to the Lenders and
the Borrower 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 Administrative Agent; provided that,
so long as no Default shall have occurred and be continuing, the Borrower shall
have the right to propose a successor Administrative Agent to the Lenders and
shall have the right to consent to any such successor Administrative Agent, such
consent not to be unreasonably withheld and to be deemed to have been given if
the Borrower does not object to the proposed successor Administrative Agent
within five Business Days of notice thereof. If no successor Administrative
Agent shall have been so appointed by the Required Lenders (and, if required,
consented to by the Borrower), and shall have accepted such appointment, within
30 days after the retiring Administrative Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which shall be 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. If within
45 days after written notice is given of the retiring Administrative Agent's
resignation or removal under this Section 7.06 no successor Administrative Agent
shall have been appointed and shall have accepted such appointment, then on such
45th day (a) the retiring Administrative Agent's resignation or removal shall
become effective, (b) the retiring Administrative Agent shall thereupon be
discharged from its duties and obligations under and in respect of this
Agreement and (c) the Required Lenders shall thereafter perform all duties and
obligations of the retiring Administrative Agent under and in respect of this
Agreement until such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided above in this Section 7.06. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Administrative Agent's resignation or removal hereunder as
55
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Administrative Agent.
SECTION 7.07. The Sub-Agent. The Sub-Agent has been designated under
-------------
this Agreement to carry out the duties of the Administrative Agent related to
Revolving Credit Advances denominated in a Foreign Currency. Each Lender hereby
appoints and authorizes the Sub-Agent to take such action as agent on its behalf
as is necessary or desirable to carry out such duties and to exercise such
powers and discretion under this Agreement as are delegated to the Sub-Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto. In that connection, the Sub-Agent shall be entitled to all
of the benefits of the Administrative Agent under this Agreement (including,
without limitation, all of the provisions of this Article VII) as if they were
set forth in full herein with respect to the Sub-Agent.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
---------------
provision of this Agreement or the Revolving Credit Notes, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Lenders, 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 at any time:
(a) waive any of the conditions specified in Section 3.01 or, with
respect to all Increasing Lenders, as applicable, and all Assuming Lenders,
Section 3.04;
(b) increase the Commitments of the Lenders (other than as elected by
any Lender as provided in Section 2.16) or subject the Lenders to any
additional obligations;
(c) reduce the principal of, or stated rate of interest on, the
Revolving Credit Notes, the stated rate at which any fees hereunder are
calculated or any other amounts payable hereunder;
(d) postpone any date fixed for any payment of principal of, or
interest on, the Revolving Credit Notes or any fees or other amounts
payable hereunder;
(e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Revolving Credit Notes, or the number of
Lenders, that shall be required for the Lenders or any of them to take any
action hereunder; or
(f) amend this Section 8.01;
and provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note.
56
SECTION 8.02. Notices, Etc. (a) All notices and other
------------
communications provided for hereunder shall be in writing (including telecopier,
telegraphic or telex communication) and mailed, telecopied, telegraphed, telexed
or delivered, if to the Borrower, at its address at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇), Attention:
Treasurer, with copies thereof to (i) the Assistant General Counsel of the
Borrower at the address of the Borrower specified above and (ii) Sidley &
Austin, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopier No. (312)
853-7036), Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.; if to any Initial Lender, at
its Base Rate Lending Office specified opposite its name on Schedule I hereto;
if to any other Lender, at its Base Rate Lending Office specified in the
Assignment and Acceptance or the Assumption Agreement, as the case may be,
pursuant to which it became a Lender; and if to the Administrative Agent, at its
address c/o Citicorp Securities, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Mr. H. ▇▇▇▇▇
▇▇▇▇▇▇▇; or, as to the Borrower or the Administrative 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 as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telecopied, telegraphed or telexed, be effective when deposited in the mails,
telecopied, delivered to the telegraph company or confirmed by telex answerback,
respectively, except that notices and communications to the Administrative Agent
pursuant to Article II, III or VII shall not be effective until received by the
Administrative 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) If any notice required under this Agreement is permitted to be
made, and is made, by telephone, actions taken or omitted to be taken in
reliance thereon by the Administrative Agent or any Lender shall be binding upon
the Borrower notwithstanding any inconsistency between the notice provided by
telephone and any subsequent writing in confirmation thereof provided to the
Administrative Agent or such Lender; provided that any such action taken or
omitted to be taken by the Administrative Agent or such Lender shall have been
in good faith and in accordance with the terms of this Agreement.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
-------------------
Lender or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof or consent
thereto; 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 applicable law.
SECTION 8.04. Costs and Expenses. (a) The Borrower hereby agrees to
------------------
pay, or to reimburse the Administrative Agent from time to time, upon demand for
all reasonable out-of-pocket costs and expenses of the Administrative 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, (i) all due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, and messenger costs and audit expenses
and (ii) the reasonable and documented fees and expenses of counsel for the
Administrative Agent with respect thereto and with respect to advising the
Administrative Agent as to its respective rights and responsibilities under this
Agreement, the Notes and the other documents to be delivered hereunder. The
Borrower further hereby agrees to pay, or to reimburse the Administrative Agent
and the Lenders from time to time, upon demand for all reasonable out-of-pocket
costs and expenses of the Administrative Agent and the Lenders, if any
(including, without limitation, reasonable and documented
57
counsel fees and expenses), 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 Administrative Agent and each
Lender in connection with the enforcement of rights under this Section 8.04(a);
provided that the Borrower shall only be obligated to pay the fees and expenses
of one counsel for the Administrative Agent and the Lenders, which shall be
counsel for the Administrative Agent, unless any Lender shall reasonably
determine that a conflict of interest exists such that counsel for the
Administrative Agent is precluded by law or by standards of conduct from
representing the Administrative Agent and the Lenders as a group, in which case
the Borrower hereby agrees to pay, or to reimburse the Administrative Agent and
the Lenders from time to time, upon demand for all reasonable and documented
fees and expenses of the minimum number of counsel necessary in the reasonable
judgment of the Lenders to provide the Administrative Agent and each Lender with
appropriate legal representation in connection with the enforcement of their
respective rights under this Agreement, the Notes and the other documents to be
delivered hereunder.
(b) The Borrower hereby agrees to indemnify and hold harmless the
Administrative 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) that may be incurred by or asserted or awarded against any Indemnified
Party, in each 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 hereby 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 Borrower or any of its
Subsidiaries or any Environmental Action relating in any way to the Borrower or
any of its Subsidiaries, except to the extent such claim, damage, loss,
liability or expense is found in a final, nonappealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct; provided, however, that, notwithstanding the
foregoing provisions of this Section 8.04(b), the Borrower shall not be
obligated to indemnify any of the Indemnified Parties for any claim, damage,
loss, liability or expense arising solely from (i) a dispute between two or more
Lenders or (ii) a claim by any Lender against the Borrower that is found in a
final nonappealable judgment by a court of competent jurisdiction in favor of
the Borrower (it being understood and agreed that this clause (ii) shall not
affect or limit any amount the Borrower may owe to any Lender as a result of any
such claim pursuant to Section 8.04(a)). In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 8.04(b)
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors, shareholders
or creditors or an Indemnified Party or any Indemnified Party is otherwise a
party thereto and whether or not any of the transactions contemplated hereby are
consummated. The Borrower hereby also agrees not to assert any claim against the
Administrative Agent, any Lender, any of their Affiliates, or any of their
respective officers, directors, employees, agents and advisors, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to this Agreement, the Notes, any of the transactions
contemplated hereby or the actual or proposed use of the proceeds of the
Advances.
(c) If any payment of principal of, or Conversion of, any
Eurocurrency Rate Advance is made by the Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.08(d) or 2.08(e), 2.09,
2.10 or 2.12, acceleration of the maturity of the Notes pursuant to Section 6.01
or for any
58
other reason, or by an Eligible Assignee to any Lender other than on the last
day of the Interest Period for such Advance upon an assignment of the rights and
obligations of such Lender under this Agreement pursuant to Section 8.07 as a
result of a demand by the Borrower pursuant to Section 8.07(a), or if the
Borrower fails to make any payment or prepayment of an Advance for which a
notice of prepayment has been given or that is otherwise required to be made,
whether pursuant to Section 2.06, 2.10 or 6.01 or otherwise, the Borrower agrees
to pay, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), to the Administrative Agent for the account of such
Lender any amounts required to compensate such Lender for any additional losses,
costs or expenses (excluding any loss of anticipated profits) that it may
reasonably incur as a result of such payment or Conversion, including, without
limitation, any loss, 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
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.11 and 2.14 and in this Section 8.04 shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under
the Notes.
SECTION 8.05. Right of Setoff. 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
Administrative 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
applicable 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 the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement and the Note or Notes held by
such Lender, whether or not such Lender shall have made any demand under this
Agreement or any such Note and although such obligations may be unmatured. Each
Lender agrees promptly to notify the Borrower after any such setoff and
application is made by such Lender; provided that the failure to give such
notice shall not affect the validity of such setoff and application. The rights
of each Lender and its Affiliates under this Section 8.05 are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) that such Lender and its Affiliates may have. Nothing in this Section
8.05 shall be construed to grant a right of setoff against any Person other than
the Borrower.
SECTION 8.06. Binding Effect. This Agreement shall become effective
--------------
(other than Sections 2.01 and 2.03, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Administrative Agent and when
the Administrative 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, and be enforceable by, the Borrower, the Administrative
Agent and each Lender and their respective successors and assigns, except that
the Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may,
------------------------------
and, if demanded by the Borrower (following (i) a demand by such Lender for the
payment of additional compensation pursuant to Section 2.11 or 2.14 or (ii) an
assertion by such Lender pursuant to Section 2.08(b) or 2.12 that it is
impracticable or unlawful for such Lender to make Eurocurrency Rate Advances)
upon at least five Business Days' notice to such Lender and the Administrative
Agent, each
59
Lender 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 Revolving Credit Advances owing to it and the
Revolving Credit Note or Notes held by it); provided, however, that:
(A) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement (other than
any right to make Competitive Bid Advances, Competitive Bid Advances owing
to it and Competitive Bid Notes);
(B) 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, when aggregated with the amount of the commitment of such
Person to lend under the 364-Day Credit Agreement that is being
concurrently assigned in accordance with subclause (C) of this Section
8.07(a) (in each case 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;
(C) the Lender assignor shall concurrently effect a ratable
assignment of its rights and obligations under the 364-Day Credit Agreement
to the same Person;
(D) each such assignment shall be to an Eligible Assignee;
(E) each such assignment made as a result of a demand by the Borrower
pursuant to this Section 8.07(a) shall be arranged by the Borrower with the
approval of the Administrative Agent, which approval shall not be
unreasonably withheld or delayed, 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,
in the aggregate, cover all of the rights and obligations of the assigning
Lender under this Agreement;
(F) no Lender shall be obligated to make any such assignment as a
result of a demand by the Borrower pursuant to this Section 8.07(a) unless
and until such Lender shall have received one or more payments from 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 from the Borrower or one or more Eligible
Assignees in an aggregate amount equal to all other amounts payable to such
Lender under this Agreement and the Notes (including, without limitation,
any amounts owing under Sections 2.07(c), 2.11 and 2.14); and
(G) the parties to each such assignment (except in the case of a
demand by the Borrower pursuant to this Section 8.07(a), other than the
Borrower) shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance,
together with any Revolving Credit Note subject to such assignment, and a
processing and recordation fee of $3,000.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, (1) 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
60
Acceptance, have the rights and obligations of a Lender hereunder and (2) 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 Sections 2.07(c), 2.11, 2.14
and 8.04 to the extent any claim thereunder relates to an event arising prior to
such assignment) and be released from its obligations (other than its
obligations under Section 7.05 to the extent that 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 any Note,
or any other instrument or document furnished pursuant hereto, or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any Note, 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 the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any Note, 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(e) 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 agrees that it will, independently and without
reliance upon the Administrative 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 Administrative Agent
and the Sub-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 Administrative Agent and the Sub-Agent, respectively, 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.
(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 Revolving Credit
61
Note or Notes subject to such assignment, the Administrative 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 Borrower. Within ten Business Days after its receipt of such
notice by the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Revolving Credit Note of
the Borrower a new Revolving Credit Note payable to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a Commitment
hereunder, a new Revolving Credit Note payable to the order of the assigning
Lender in an amount equal to the Commitment retained by it hereunder. Such new
Revolving Credit Note or Notes shall be in an aggregate principal amount equal
to the aggregate principal amount of such surrendered Revolving Credit Note or
Notes, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A-1 hereto.
(d) The Administrative Agent shall maintain at its address referred
to in Section 8.02(a) a copy of 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 demonstrable error, and
the Borrower, the Administrative 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 the Borrower
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 Borrower 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 the Note or Notes held by it); provided, however, that:
(i) such Lender's obligations under this Agreement (including,
without limitation, its Commitment) 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 Borrower, the Administrative Agent, the Sub-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 consent to any departure by the Borrower herefrom or
therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or stated rate of interest on, the Notes or
the stated rate at which any fees or any other amounts payable hereunder
are calculated, in each case to the extent subject to such participation,
or postpone any date fixed for any payment of
62
principal of, or interest on, the Notes or any fees or any other amounts
payable hereunder, in each case to the extent subject to such
participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to any assignee or participant or proposed assignee or
participant any information relating to the Borrower or any of its Subsidiaries
furnished to such Lender by or on behalf of the Borrower; provided that, prior
to any such disclosure, the assignee or participant or proposed assignee or
participant shall agree to preserve the confidentiality of such Confidential
Information received by it from such Lender in accordance with Section 8.08.
(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 the 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 8.08. Confidentiality. Neither the Administrative Agent nor
---------------
any Lender shall disclose any Confidential Information to any Person without the
prior consent of the Borrower, other than (a) to the Administrative Agent's or
such Lender's Affiliates and their officers, directors, employees, agents and
advisors and, as contemplated by Section 8.07(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 or legal process, provided
that solely with respect to this clause (b) the Administrative Agent or such
Lender shall notify the Borrower of the requirement or request that it disclose
any such Confidential Information prior to doing so unless such notification is
prohibited by any applicable law or judicial or legal process, (c) to the
Administrative Agent and/or other Lenders and (d) as requested or required by
any state, federal or foreign authority or examiner regulating banks or banking.
SECTION 8.09. 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 8.10. 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 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 8.11. Judgment. (a) Rate of Exchange. If, for the purpose
-------- ----------------
of obtaining judgment in any court, it is necessary to convert a sum due
hereunder or under any Note or Notes in another currency into US Dollars or into
a Foreign Currency, as the case may be, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall be
that at which, in accordance with normal banking procedures, a Lender could
purchase such other currency with US Dollars or with a Foreign Currency, as the
case may be, at the principal office of the Sub-Agent in London, England at the
close of business on the Business Day immediately preceding the day on which
final judgment is given, together with any premiums and costs of exchange
payable in connection with such purchase.
(b) Indemnity. The obligation of the Borrower in respect of any sum
---------
due from it to the Administrative Agent or any Lender hereunder or under any
Note or Notes shall, notwithstanding any
63
judgment in a currency other than US Dollars or a Foreign Currency, as the case
may be, be discharged only to the extent that on the Business Day next
succeeding receipt by the Administrative Agent or such Lender of any sum
adjudged to be so due in such other currency, the Administrative Agent or such
Lender may, in accordance with normal banking procedures, purchase US Dollars or
such Foreign Currency, as the case may be, with such other currency. If the US
Dollars or such Foreign Currency so purchased are less than the sum originally
due to such Administrative Agent or such Lender in US Dollars or in such Foreign
Currency, the Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify the Administrative Agent or such Lender against such
loss, and if the US Dollars or such Foreign Currency so purchased exceed the sum
originally due to the Administrative Agent or any Lender in US Dollars or in
such Foreign Currency, as the case may be, the Administrative Agent or such
Lender agrees to remit to the Borrower such excess.
SECTION 8.12. 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 any 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 in respect thereof, 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 any such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement 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 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 8.13. Waiver of Jury Trial. The Borrower, the Administrative
--------------------
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 Administrative Agent or any Lender in the negotiation,
administration, performance or enforcement hereof or thereof.
$14,000,000 FLEET BANK, N.A.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
_______________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
TOTAL OF COMMITMENTS
--------------------
$175,000,000
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.
THE BORROWER
------------
TRUE NORTH COMMUNICATIONS INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
THE ADMINISTRATIVE AGENT
------------------------
CITIBANK, N.A., as Administrative Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
____________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Attorney-in-Fact
THE INITIAL LENDERS
-------------------
COMMITMENT
----------
$42,000,000 CITIBANK, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
____________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Attorney-in-Fact
$24,500,000 THE FIRST NATIONAL BANK OF CHICAGO
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
$24,500,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
____________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
$24,500,000 THE CHASE MANHATTAN BANK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
____________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
$17,500,000 THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
____________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Deputy General Manager
$14,000,000 BANQUE NATIONALE DE PARIS
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ du ▇▇▇▇▇▇
____________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ du Bocage
Title: Executive Vice President
& General Manager
$14,000,000 THE NORTHERN TRUST COMPANY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
____________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
SCHEDULE I TO THE CREDIT AGREEMENT
COMMITMENTS AND APPLICABLE LENDING OFFICES
NAME OF DOMESTIC EUROCURRENCY
INITIAL LENDER COMMITMENT LENDING OFFICE LENDING OFFICE
-------------- ---------- -------------- --------------
Citibank, N.A. $18,000,000 Two Penns Way, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of America National Trust $10,500,000 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Street, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
and Savings Association ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The First National Bank $10,500,000 One First National Plaza One First National Plaza
of Chicago ▇▇▇▇▇ ▇▇▇▇ ▇-▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇-▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Chase Manhattan Bank $10,500,000 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇ Attn: ▇▇▇ ▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of Tokyo-Mitsubishi, $ 7,500,000 ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, 227 ▇. ▇▇▇▇▇▇ Street,
Ltd., Chicago Branch Suite 2300 Suite 2300
Exhibits to True North Communications 364-Day Credit Agreement
NAME OF DOMESTIC EUROCURRENCY
INITIAL LENDER COMMITMENT LENDING OFFICE LENDING OFFICE
-------------- ---------- -------------- --------------
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Banque Nationale de Paris $ 6,000,000 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Jo ▇▇▇▇▇ ▇▇▇▇▇▇ Attn: Jo ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Northern Trust Company $ 6,000,000 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ Teleak Attn: ▇▇▇▇▇▇▇▇ Teleak
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Fleet Bank, N.A. $ 6,000,000 1185 Avenue of the Americas ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibits to True North Communications 364-Day Credit Agreement
EXHIBIT A-1 TO THE CREDIT AGREEMENT
FORM OF REVOLVING CREDIT PROMISSORY NOTE
U.S.$_______________ Dated: _________ __, _______
FOR VALUE RECEIVED, the undersigned, TRUE NORTH COMMUNICATIONS INC., a
Delaware corporation (the "BORROWER"), HEREBY PROMISES TO PAY to the order of
______________ (the "LENDER") for the account of its Applicable Lending Office
(as defined in the Credit Agreement referred to below) on the Revolver
Termination Date (as defined in the Credit Agreement), the principal amount of
U.S. [SPECIFY PRINCIPAL AMOUNT OF THE LENDER'S COMMITMENT IN WORDS] DOLLARS or,
if different, the aggregate principal amount of all Revolving Credit Advances
(as defined in the Credit Agreement) made by the Lender to the Borrower pursuant
to the Credit Agreement and outstanding on the Revolver Termination Date or the
Maturity Date, as applicable. Capitalized terms not otherwise defined in this
Promissory Note shall have the same meanings as specified therefor in the Credit
Agreement.
The Borrower promises to pay interest on the unpaid principal amount
of each Revolving Credit Advance made by the Lender from the date of such
Revolving Credit Advance until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in the Credit
Agreement.
Both principal of and interest on each Revolving Credit Advance made
by the Lender (a) in US Dollars, are payable in lawful money of the United
States of America to Citibank, N.A., as Administrative Agent, at ▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇, Reference: True North
Communications Inc. (or such other account maintained by the Administrative
Agent and designated thereby in a written notice to the Borrower and the
Lender), in same day funds, and (b) in any Foreign Currency, are payable in such
Foreign Currency at the applicable Payment Office in same day funds. Each
Revolving Credit Advance owing to the Lender 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; provided that the failure of the Lender
to make any such recordation or endorsement shall not affect the obligations of
the Borrower under or in respect of this Promissory Note or the Credit
Agreement.
This Promissory Note is one of the Revolving Credit Notes referred to
in, and is entitled to the benefits of, the Credit Agreement dated as of May 29,
1998 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT", the terms defined therein being used herein as therein
defined) among the Borrower, the Lender and certain other banks, financial
institutions and other institutional lenders party thereto and Citibank, N.A.,
as Administrative Agent for the Lender and such other banks, financial
institutions and other institutional lenders thereunder. The Credit Agreement,
among other things, (A) provides for the making of Revolving Credit Advances by
the Lender to the Borrower from time to time on and after the Effective Date in
an aggregate amount not to exceed at any time outstanding the U.S. Dollar amount
first above mentioned (or the Equivalent thereof in the Foreign Currencies in
which any such Revolving Credit Advances are denominated), the indebtedness of
the Borrower resulting from each such Revolving Credit Advance being evidenced
by this Promissory Note, (B) contains provisions for determining the Equivalent
in US Dollars of the Revolving Credit Advances denominated in Foreign Currencies
and (C) is subject to optional and mandatory commitment reductions and
prepayments on account
A-1-ii
of principal hereof, in whole or in part, prior to the maturity hereof upon the
terms and conditions specified in Sections 2.05 and 2.10 of the Credit
Agreement.
Upon the occurrence and during the continuance of one or more Events
of Default, the unpaid principal amount of this Promissory Note and all accrued
and unpaid interest hereon and other amounts payable in respect hereof and of
the Credit Agreement and the other Notes may become, or may be declared to be,
immediately due and payable as provided in Section 6.01 of the Credit Agreement.
The terms of this Promissory Note may be amended, supplemented or
otherwise modified only in the manner provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure on the part of the holder hereof to exercise, and no delay
in exercising, any right, power or privilege hereunder shall operate as a waiver
thereof or a consent thereto; nor shall a single or partial exercise of any such
right, power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
TRUE NORTH COMMUNICATIONS INC.
By____________________________________
Name:
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
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AMOUNT/CURRENCY OF AMOUNT OF
REVOLVING PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE CREDIT ADVANCE OR PREPAID BALANCE MADE BY
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EXHIBIT A-2 TO THE CREDIT AGREEMENT
FORM OF COMPETITIVE BID PROMISSORY NOTE
U.S. $_______________ Dated: _________ __, _______
FOR VALUE RECEIVED, the undersigned, TRUE NORTH COMMUNICATIONS INC., a
Delaware corporation (the "BORROWER"), HEREBY PROMISES TO PAY to the order of
_______________ (the "LENDER"), for the account of its Applicable Lending Office
(as defined in the Credit Agreement referred to below) on ________________,
____, the lesser of (a) the principal amount of U.S.[SPECIFY PRINCIPAL AMOUNT
EVIDENCED BY THIS PROMISSORY NOTE IN WORDS] DOLLARS and (b) the principal amount
of the Competitive Bid Advance (as defined in the Credit Agreement) made by the
Lender and evidenced by this Promissory Note, and outstanding on
________________, ____. Capitalized terms not otherwise defined in this
Promissory Note shall have the same meanings as specified therefor in the Credit
Agreement.
The Borrower promises to pay interest on the unpaid principal amount
of the Competitive Bid Advance evidenced by this Promissory Note from the date
hereof until such principal amount is paid in full, at the interest rate and
payable on the interest payment date or dates provided below and on the date
such principal amount is paid in full:
Interest Rate: _____% per annum (calculated on the basis of a year of
360 days for the actual number of days elapsed).
Maturity Date: _____________________
Interest Payment Date(s): _____________________
Both principal and interest on the unpaid principal amount of the
Competitive Bid Advance evidenced by this Promissory Note are payable in lawful
money of the United States of America to Citibank, N.A., as Administrative
Agent, for the account of the Lender, at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇, Reference: True North Communications Inc., in same
day funds (or such other account maintained by the Administrative Agent and
designated thereby in a written notice to the Borrower and the Lender).
The principal amount of the Competitive Bid Advance evidenced by this
Promissory Note [may] [may not] be prepaid, in whole or in part [upon at least
___ Business Days' notice to the Administrative Agent and the Lender, together
with accrued interest to the date of such prepayment on the principal amount so
prepaid; provided, however, that (i) each partial prepayment shall be in an
aggregate amount of U.S. $_________ or an integral multiple of U.S. $_________
in excess thereof and (ii) the Borrower shall be obligated to reimburse the
Lender in respect thereof pursuant to Section 8.04(c) of the Credit Agreement].
This Promissory Note is one of the Competitive Bid Notes referred to
in, and is entitled to the benefits of, the Credit Agreement dated as of May 29,
1998 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"; the terms defined therein being used herein as therein
defined) among the Borrower, the Lender and certain other banks, financial
institutions and other
A-2-ii
institutional lenders party thereto and Citibank, N.A., as Administrative Agent
for the Lender and such other banks, financial institutions and other
institutional lenders thereunder.
Upon the occurrence and during the continuance of one or more Events
of Default, the unpaid principal amount of this Promissory Note and all accrued
and unpaid interest hereon and other amounts payable in respect hereof and of
the Credit Agreement and the other Notes may become, or may be declared to be,
immediately due and payable as provided in Section 6.01 of the Credit Agreement.
The terms of this Promissory Note may be amended, supplemented or
otherwise modified only in the manner provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure on the part of the holder hereof to exercise, and no delay
in exercising, any right, power or privilege hereunder shall operate as a waiver
thereof or a consent thereto; nor shall a single or partial exercise of any such
right, power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
TRUE NORTH COMMUNICATIONS INC.
By____________________________________
Name:
Title:
EXHIBIT B-1 TO THE CREDIT AGREEMENT
FORM OF NOTICE OF REVOLVING CREDIT BORROWING
[Date of Notice of Revolving
Credit Borrowing]
Citibank, N.A., as Administrative Agent
for the Lenders party to the
Credit Agreement referred to below
[Address]
Attention: ____________________
Ladies and Gentlemen:
The undersigned, TRUE NORTH COMMUNICATIONS INC., a Delaware
corporation, refers to the Credit Agreement dated as of May 29, 1998 (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"; capitalized terms defined therein unless otherwise defined herein
being used herein as therein defined) among the undersigned, the banks,
financial institutions and other institutional lenders (collectively, the
"LENDERS") party thereto and Citibank, N.A., as Administrative Agent for the
Lenders thereunder, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement, that the undersigned hereby requests a
Revolving Credit Borrowing under the Credit Agreement and, in connection
therewith, sets forth below the information relating to such Revolving Credit
Borrowing (the "PROPOSED REVOLVING CREDIT BORROWING") as required by Section
2.02(a) of the Credit Agreement:
(a) The Business Day of the Proposed Revolving Credit Borrowing is
requested to be _________, ____.
(b) The Type of Advances requested to comprise the Proposed Revolving
Credit Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances].
(c) The requested currency of the Proposed Revolving Credit Borrowing
is [US Dollars] [SPECIFY FOREIGN CURRENCY].
(d) The aggregate principal amount of the Proposed Revolving Credit
Borrowing is _______________.
[(e) The initial Interest Period that is requested for each
Eurocurrency Rate Advance to be made as part of the Proposed Revolving
Credit Borrowing is [one week] [one month] [two months] [three months] [six
months].]
The undersigned hereby certifies that the following statements are
true on and as of the date of this Notice of Revolving Credit Borrowing and will
be true on and as of the date of the Proposed Revolving Credit Borrowing:
__________________________
To be included in each Notice of Revolving Credit Borrowing for a Proposed
Revolving Credit Borrowing requested to be comprised of Eurocurrency Rate
Advances.
B-1-ii
(i) The representations and warranties contained in Section 4.01 of
the Credit Agreement (except for the representation and warranty set
forth in clause (i) of Section 4.01(f) of the Credit Agreement) are
correct, before and after giving effect to the Proposed Revolving Credit
Borrowing 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
the Proposed Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
Very truly yours,
TRUE NORTH COMMUNICATIONS INC.
By___________________________________
Name:
Title:
cc: _______________
EXHIBIT B-2 TO THE CREDIT AGREEMENT
FORM OF NOTICE OF COMPETITIVE BID BORROWING
[Date of Notice of Competitive
Bid Borrowing]
To each of the Lenders party to the
Credit Agreement referred to below
and to Citibank, N.A., as Administrative
Agent for said Lenders
[Address]
Attention: ____________________
Ladies and Gentlemen:
The undersigned, TRUE NORTH COMMUNICATIONS INC., a Delaware
corporation, refers to the Credit Agreement dated as of May 29, 1998 (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"; capitalized terms defined therein unless otherwise defined herein
being used herein as therein defined) among the undersigned, the banks,
financial institutions and other institutional lenders (collectively, the
"LENDERS") party thereto and Citibank, N.A., as Administrative Agent for the
Lenders thereunder, and hereby gives you notice, irrevocably, pursuant to
Section 2.03 of the Credit Agreement, that the undersigned hereby requests a
Competitive Bid Borrowing under the Credit Agreement and, in that connection,
sets forth the terms on which such Competitive Bid Borrowing (the "PROPOSED
COMPETITIVE BID BORROWING") is requested to be made:
(a) Date of Proposed Competitive ________________________
Bid Borrowing
(b) Amount of Proposed Competitive
Bid Borrowing U.S.$____________________
(c) Maturity Date of
Proposed Competitive Bid Borrowing ________________________
(d) Terms of Prepayment of
Proposed Competitive Bid Borrowing [May [not] be prepaid
[with] [without] penalty]
(e) Interest Payment Date(s) ________________________
(f) ____________________ ________________________
(g) ____________________ ________________________
The undersigned hereby certifies that the following statements are
true on and as of the date of this Notice of Competitive Bid Borrowing and will
be true on and as of the date of the Proposed Competitive Bid Borrowing:
(i) The representations and warranties contained in Section 4.01 of
the Credit Agreement (except for the representation and warranty set forth
in clause (i) of Section 4.01(f) of the Credit Agreement) are correct,
before and after giving effect to the Proposed Competitive Bid Borrowing
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
the Proposed Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
The undersigned hereby confirms that the Proposed Competitive Bid
Borrowing is to be made available to it in accordance with Section 2.03(a)(iv)
of the Credit Agreement.
B-2-ii
Very truly yours,
TRUE NORTH COMMUNICATIONS INC.
By___________________________________
Name:
Title:
cc: Citicorp Securities, Inc.
[Address]
Attention: _______________
EXHIBIT C-1 TO THE CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of May 29, 1998 (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT") among True North Communications Inc., a Delaware corporation, the
banks, financial institutions and other institutional lenders (collectively, the
"LENDERS") party thereto and Citibank, N.A., as Administrative Agent for the
Lenders thereunder. Capitalized terms not otherwise defined in this Assignment
and Acceptance shall have the same meanings as specified therefor in the Credit
Agreement.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
hereby agree as follows:
1. The Assignor hereby sells and assigns, without recourse except as
to the representations and warranties made by the Assignor herein, 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 Effective Date (as hereinafter defined) (other than in
respect of Competitive Bid Advances and Competitive Bid Notes) equal to the
percentage interest specified on Schedule I hereto of all outstanding rights and
obligations under the Credit Agreement (other than in respect of Competitive Bid
Advances and Competitive Bid Notes). After giving effect to such sale and
assignment, the Assignee's Commitment and the principal amount of the Revolving
Credit Advances owing to the Assignee will be as set forth on Schedule I hereto.
2. The Assignor (a) hereby represents and warrants that it is the
legal and beneficial owner of the interest being sold and assigned by it
hereunder and that such interest is free and clear of any adverse claim; (b)
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 any Note or any of the instruments or documents
furnished pursuant thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or any
Note, or any of the instruments or documents furnished pursuant thereto; (c)
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under or in respect of the Credit
Agreement or any Note, or any of the instruments or documents furnished pursuant
thereto; and (d) attaches the Revolving Credit Note held by the Assignor and
requests that the Administrative Agent exchange such Revolving Credit Note for
[a new Revolving Credit Note payable to the order of the Assignee in an amount
equal to the Commitment assumed by the Assignee pursuant hereto]1 [new Revolving
Credit 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 I hereto].2
3. The Assignee (a) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01(e) thereof and such other
_________________________
To be included in each Assignment and Acceptance pursuant to which the
Assignor is assigning its entire Commitment.
To be included in each Assignment and Acceptance pursuant to which the
Assignor is assigning a portion of its Commitment.
C-1-ii
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (b) agrees
that it will, independently and without reliance upon the Administrative 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; (c) confirms that it
is an Eligible Assignee; (d) appoints and authorizes the Administrative Agent
and the Sub-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
Administrative Agent and the Sub-Agent, respectively, by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto;
(e) 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; (f) specifies as its Applicable Lending Offices the
offices set forth below its name on Schedule I hereto; and (g) attaches any U.S.
Internal Revenue Service forms required to be provided by it under Section 2.14
of the Credit Agreement, and agrees to provide from time to time any successor
or other form prescribed by the Internal Revenue Service as required to be
provided by it under Section 2.14 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Administrative Agent for acceptance and recording in the
Register by the Administrative Agent. The effective date for this Assignment
and Acceptance (the "EFFECTIVE DATE") shall be the date of acceptance and
recording hereof in the Register by the Administrative Agent or such later date
as shall be specified therefor on Schedule I hereto.
5. Upon such acceptance and recording in the Register by the
Administrative Agent, as of the Effective Date, (a) 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 (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights (other than its rights under Sections 2.07(c), 2.11, 2.14
and 8.04 of the Credit Agreement to the extent any claim thereunder relates to
an event arising prior to such assignment) and be released from its obligations
(other than its obligations under Section 7.05 to the extent any claim
thereunder relates to an event arising prior to such assignment) under the
Credit Agreement.
6. Upon such acceptance and recording in the Register by the
Administrative Agent, from and after the Effective Date, the Administrative
Agent shall make all payments under the Credit Agreement and the Revolving
Credit Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest, Commitment Fees and Utilization
Fees with respect thereto) to the Assignee. The Assignor and Assignee shall
make all appropriate adjustments in payments under the Credit Agreement and the
Revolving Credit 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 I hereto 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
I hereto to be executed by their officers thereunto duly authorized, as of the
date specified thereon.
SCHEDULE I TO ASSIGNMENT AND ACCEPTANCE
Percentage interest assigned: ______________%
Assignee's Commitment: $_____________
Aggregate outstanding principal amount of
Revolving Credit Advances in US Dollars assigned:
$_____________
Average outstanding principal amount of Revolving
Credit Advances in lawful currency of the United
Kingdom of Great Britain and Northern Ireland assigned: (pounds)______
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the Federal Republic of
Germany assigned: DM____________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the Republic of France
assigned: FFR___________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of The Swiss Confederation
assigned: _______________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of The Kingdom of the
Netherlands assigned: _______________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of Japan assigned: _______________
[Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the European Economic and
Monetary Union assigned:] ______________]
Principal amount of Revolving Credit Note payable to
Assignee: $______________
Principal amount of Revolving Credit Note payable to
Assignor: $______________
Effective Date (if other than the date of acceptance and
recording in the Register by the Administrative Agent):3 _________, ____
___________________________
3 This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the Administrative Agent.
2
[NAME OF ASSIGNOR], as Assignor
By________________________________________
Name:
Title:
Dated: _______________, ____
[NAME OF ASSIGNEE], as Assignee
By________________________________________
Name:
Title:
Dated: _______________, 199_
Base Rate Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
Accepted [and Approved]4 this
__________ day of _______________, ____
CITIBANK, N.A., as Administrative Agent
By___________________________________
Name:
Title:
[Approved this __________ day
of _______________, ____
TRUE NORTH COMMUNICATIONS INC.
By_________________
________________________
4 Required if the Assignee is an Eligible solely by reason of clause (iii) of
the definition of "Eligible Assignee" set forth in Section 1.01 of the Credit
Agreement.
EXHIBIT C-2 TO THE CREDIT AGREEMENT
FORM OF ASSUMPTION AGREEMENT
[Date]
True North Communications Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ________________
Citibank, N.A., as Administrative Agent
for the Lenders party to the
Credit Agreement referred to below
[399 ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇]
Attention: ________________
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of May 29, 1998 (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT") among True North Communications Inc., a Delaware corporation (the
"COMPANY"), the banks, financial institutions and other institutional lenders
(collectively, the "LENDERS") party thereto and Citibank, N.A., as
Administrative Agent for the Lenders thereunder. Capitalized terms not
otherwise defined in this Agreement shall have the same meanings as specified
therefor in the Credit Agreement.
___________ (the "NON-CONSENTING LENDER") and ___________ (the
"ASSUMING LENDER") hereby agree as follows:
1. The Assuming Lender proposes to become a Lender pursuant to
Section 2.17(c) of the Credit Agreement and, in that connection, hereby
agrees with the Administrative Agent and the Company that it shall become a
Lender for all purposes of the Credit Agreement on the applicable Extension
Date. In connection therewith, the Non-Consenting Lender hereby sells and
assigns, without recourse except as to the representations and warranties
made by the Non-Consenting Lender herein, to the Assuming Lender, and the
Assuming Lender hereby purchases and assumes from the Non-Consenting
Lender, all interest in and to the Non-Consenting Lender's rights and
obligations under the Credit Agreement (other than in respect of
Competitive Bid Advances and Competitive Bid Notes) as of the applicable
Extension Date, which interest is equal to _____% of all outstanding rights
and obligations of the Lenders under the Credit Agreement (other than in
respect of Competitive Bid Advances and Competitive Bid Notes) on such
Extension Date. After giving effect to such sale and assignment, the
Assuming Lender's Commitment and the principal amount of the Revolving
Credit Advances owing to the Assuming Lender will be as set forth on
Schedule I hereto.
2. The Non-Consenting Lender (a) represents and warrants that it is
the legal and beneficial owner of the interest being sold and assigned by
it hereunder and that such interest is free and clear of any adverse claim;
(b) makes no representation or warranty and assumes no
C-2-ii
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any
of the instruments or documents furnished pursuant thereto, or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any Note, or any other instrument or
document furnished pursuant thereto; (c) makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower
of any of its obligations under or in respect of the Credit Agreement or
any Note, or any other instrument or document furnished pursuant thereto;
and (d) attaches the Revolving Credit Note held by the Non-Consenting
Lender and requests that the Administrative Agent exchange such Revolving
Credit Note for a new Revolving Credit Note payable to the order of the
Assuming Lender in an amount equal to the Commitment assumed by the
Assuming Lender pursuant hereto.
3. The Assuming Lender (a) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements
referred to in Section 4.01(e) thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assumption Agreement; (b) agrees that it
will, independently and without reliance upon the Administrative Agent, the
Non-Consenting 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 the Credit
Agreement; (c) confirms that it is an Eligible Assignee; (d) appoints and
authorizes the Administrative Agent and the Sub-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 Administrative Agent and the Sub-
Agent, respectively, by the term thereof, together with such powers and
discretion as are reasonably incidental thereto; (e) 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; (f) specifies as its Applicable Lending Offices the offices set
forth below its name on the signature page hereof; and (g) attaches any
U.S. Internal Revenue Service forms required to be provided by it under
Section 2.14 of the Credit Agreement, and agrees to provide from time to
time any successor or other form prescribed by the Internal Revenue Service
as required to be provided by it under Section 2.14 of the Credit
Agreement.
4. Following the execution of this Assumption Agreement, it will be
delivered to the Administrative Agent for acceptance and recording in the
Register by the Administrative Agent. The effective date for this
Assumption Agreement (the "EFFECTIVE DATE") shall be the applicable
Extension Date.
5. Upon satisfaction of the applicable conditions set forth in
Section 2.17 (including, without limitation, the conditions set forth in
Article III of the Credit Agreement) and upon such acceptance and recording
in the Register by the Administrative Agent, as of the Effective Date, the
Assuming Lender shall be a party to the Credit Agreement and have the
rights and obligations of a Lender thereunder and, subject to the proviso
set forth below, the Non-Consenting Lender shall cease to be a party
thereto; provided, however, that the Non-Consenting Lender's rights and
obligations under Sections 2.07(c), 2.11, 2.14 and 8.04, and its
obligations under Section 7.05, of the Credit Agreement shall survive the
assumption of all of the Non-Consenting Lender's rights and obligations
under the Credit Agreement pursuant to this Assumption Agreement as to
matters occurring prior to the Effective Date.
C-2-iii
6. This Assumption Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
7. This Assumption 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 deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery
of an executed counterpart of this Assumption Agreement by telecopier shall
be effective as delivery of a manually executed counterpart of this
Assumption Agreement.
Very truly yours,
[NAME OF ASSUMING LENDER]
By____________________________
Name:
Title:
Date: __________, ____
Base Rate Lending Office:
[Address]
Eurocurrency Lending Office
[Address]
Acknowledged and Agreed to as
of this _______ day of ________, ____:
[NAME OF NON-CONSENTING LENDER]
By___________________________________
Name:
Title:
C-2-iv
Accepted and Approved this
___ day of __________, ____:
CITIBANK, N.A., as Administrative Agent
By______________________
Name:
Title:
Approved this ____ day
of __________, ____:
TRUE NORTH COMMUNICATIONS INC.
By______________________
Name:
Title:
SCHEDULE I TO ASSIGNMENT AND ACCEPTANCE
Percentage interest assigned: ______________%
Assuming Lender's Commitment: _______________
Aggregate outstanding principal amount of
Revolving Credit Advances in US Dollars assumed: $______________
Average outstanding principal amount of Revolving
Credit Advances in lawful currency of the United
Kingdom of Great Britain and Northern Ireland assumed: (Pounds)_______
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the Federal Republic of
Germany assumed: DM_____________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the Republic of France assumed: FFR____________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of The Swiss Confederation assumed: ______________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of The Kingdom of
Netherlands assumed: ______________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of Japan assumed: _______________
[Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the European Economic and
Monetary Union assumed:] ______________]
Principal amount of Revolving Credit Note payable to Assuming Lender: $_____
Effective Date: _________, ____
EXHIBIT D-1 TO THE CREDIT AGREEMENT
FORM OF OPINION OF ASSISTANT GENERAL COUNSEL FOR THE BORROWER
May 29, 1998
To each of the Lenders party to the
Credit Agreement referred to below
and to Citibank, N.A., as Administrative
Agent for said Lenders
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(g)(iii) of
the Credit Agreement dated as of May 29, 1998 (the "CREDIT AGREEMENT") among
True North Communications Inc. (the "COMPANY"), the banks, financial
institutions and other institutional lenders (collectively, the "LENDERS") party
thereto and Citibank, N.A., as Administrative Agent for the Lenders thereunder.
Capitalized terms used herein shall have the same meanings as specified therefor
in the Credit Agreement.
I am the Assistant General Counsel of the Company and have acted as
counsel for the Company in connection with the preparation, execution and
delivery of the Credit Agreement.
In that connection, I have examined originals or copies, certified or
otherwise identified to my satisfaction, of:
(1) The Credit Agreement; and
(2) The Revolving Credit Notes of the Company.
I have also examined the originals, or copies certified to my
satisfaction, of such (i) certificates of public officials, (ii) certificates of
officers and representatives of the Company and its Subsidiaries, and (iii)
other documents and records, and I have made such inquiries of officers and
representatives of the Company and its Subsidiaries, as I have deemed relevant
or necessary as the basis for the opinions expressed below. I have relied as to
factual matters upon, and assumed the accuracy of, such certificates and other
statements, documents and records supplied to me by the Company and its
Subsidiaries, and I have assumed the genuineness of all signatures (other than
signatures of officers of the Company and its Subsidiaries) and the authenticity
of all documents submitted to us as originals and the conformity to original
documents of all documents submitted to me as certified or photostatic copies.
My opinions expressed below is limited to the laws of the State of
Illinois and the federal law of the United States.
Based upon the foregoing and subject to the qualifications stated
herein, I am of the opinion that, as of the date hereof:
1. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes, and the consummation of the transactions
contemplated thereby, do not contravene any
D-1-ii
judgment, order, writ, injunction, decree, determination or award binding on or
affecting the Company of which I am aware.
2. To my knowledge, there is no action, suit, investigation,
litigation, arbitration or proceeding (including, without limitation, any
Environmental Action) affecting the Company or any of its Subsidiaries pending
or threatened before any court, governmental agency or arbitrator that purports
to affect the legality, validity or enforceability of the Credit Agreement or
any Note or the consummation of the transactions contemplated thereby or, except
as described on Schedule 3.01(b) to the Credit Agreement, that, either
individually or in the aggregate, could reasonably be expected to have a
material adverse effect on the business, financial condition, operations,
properties or performance of the Company and its Subsidiaries, taken as a whole.
This opinion is being delivered to you as of the date hereof and is
solely for your benefit in connection with the transaction contemplated in the
Credit Agreement and may not be relied on in any manner or for any purpose by
any other person or entity, nor any copies published, communicated or otherwise
made available in whole or in part to any other person or entity, without my
express prior written consent, except that you may furnish copies hereof to each
party that becomes a Lender after the date hereof pursuant to the Credit
Agreement, and such parties may rely on this opinion as if it had been
originally addressed to them.
I do not express my opinion, either implicitly or otherwise, on any
issue not expressly addressed in numbered Paragraphs 1 and 2. The opinions
expressed above are based solely on facts, laws and regulations existing and in
effect on the date hereof, and I assume no obligation to revise or supplement
these opinions should such facts change or should such laws or regulations be
changed by legislative or regulatory action, judicial decision or otherwise,
notwithstanding that such changes may effect the legal analysis or conclusions
contained in these opinions.
Very truly yours,
[Name]
Assistant General Counsel
EXHIBIT D-2 TO THE CREDIT AGREEMENT
FORM OF OPINION OF COUNSEL FOR THE BORROWER
May 29, 1998
To each of the Lenders party to the
Credit Agreement referred to below
and to Citibank, N.A., as Administrative
Agent for said Lenders
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(g)(iii) of
the Credit Agreement dated as of May 29, 1998 (the "CREDIT AGREEMENT") among
True North Communications Inc. (the "COMPANY"), the banks, financial
institutions and other institutional lenders (collectively, the "LENDERS") party
thereto and Citibank, N.A., as Administrative Agent for the Lenders thereunder.
Capitalized terms used herein shall have the same meanings as specified therefor
in the Credit Agreement.
We have acted as special counsel for the Company in connection with
the preparation, execution and delivery of the Credit Agreement.
In that connection, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of:
(1) The Credit Agreement;
(2) The Revolving Credit Notes;
(3) The Certificate of Incorporation of the Company and all
amendments thereto (the "CHARTER");
(4) The by-laws of the Company and all amendments thereto (the "BY-
LAWS"); and
(5) A certificate of the Secretary of State of Delaware, dated May
__, 1998, attesting to the continued corporate existence and good standing
of the Company in that state.
We have also examined the originals, or copies certified to our
satisfaction, of the documents listed in a certificate of the Vice President and
Treasurer of our Company, dated the date hereof (the "CERTIFICATE"), certifying
that the documents listed in such certificate are all of the indentures, loan or
credit agreements, leases, guarantees, mortgages, security agreements, bonds,
notes and other agreements or instruments, and all of the orders, writs,
judgments, awards, injunctions and decrees, that restrict or purport to restrict
the Company's right to borrow money or to perform the Company's obligations
under the Credit Agreement or the Notes. In addition, we have also examined the
originals, or copies certified to our satisfaction, of such (i) certificates of
public officials, (ii) certificates of officers and representatives of the
Company and its Subsidiaries, and (iii) other documents and records, and we have
made such inquiries of officers and representatives of the Company and its
Subsidiaries, as we have deemed relevant or necessary as the basis for the
opinion expressed below. We have relied as to factual matters upon, and assumed
the
D-2-ii
accuracy of, such certificates and other statements, documents and records
supplied to us by the Company and its Subsidiaries, and we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals and the conformity to original documents of all documents
submitted to us as certified or photostatic copies.
In rendering the opinions set forth herein, we have assumed that:
(i) all parties to the Credit Agreement, other than the Company, are
duly organized, validly existing and in good standing under the laws of
their respective jurisdictions of organization and have the requisite
corporate power to enter into the Credit Agreement; and
(ii) the Credit Agreement has been duly executed and delivered by all
parties thereto other than the Company and constitutes the valid and
binding obligation of all parties thereto other than the Company,
enforceable against such parties in accordance with its terms.
Our opinion below is limited to the laws of the State of New York, the
General Corporation Law of the State of Delaware and the federal law of the
United States.
Based upon the foregoing and subject to the qualifications stated
herein, we are of the opinion that, as of the date hereof:
1. The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes, and the consummation of the transactions
contemplated thereby, are within the Company's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene (i) the
Charter or the By-laws, (ii) any law, rule or regulation applicable to the
Company (including, without limitation, any usury laws) or (iii) any contractual
or legal restriction contained in any document listed in the Certificate.
3. No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body, or any Person
party to any document listed in the Certificate, is required for the due
execution, delivery and performance by the Company of the Credit Agreement and
its Notes or for the Company's performance of any of the terms thereof.
4. The Credit Agreement and the Notes of the Company have been duly
executed and delivered on behalf of the Company.
5. The Credit Agreement is, and after giving effect to the initial
Borrowing, the Notes of the Company will be, legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms.
The opinions set forth above are subject to the following
qualifications:
(a) Our opinion in paragraph 5 above as to validity, binding effect
and enforceability is subject to the effect of any applicable bankruptcy,
insolvency (including, without limitation, all laws
D-2-iii
relating to fraudulent transfers), reorganizations, moratorium or similar law
affecting creditors' rights generally.
(b) Our opinion in paragraph 5 above as to enforceability is subject
to (i) the effect of general principles of equity (regardless of whether
considered in a proceeding in equity or at law) and (ii) limitations imposed by
public policy under certain circumstances on the enforceability of provisions
indemnifying a party against liability for its own wrongful or negligent acts.
In applying principles of equity referred to in clause (i) above, a court, among
other things, might not allow a creditor to accelerate maturity of a debt upon
the occurrence of a default deemed immaterial. Such principles applied by a
court might include a requirement that a creditor act reasonably and in good
faith.
(c) We express no opinion as to the enforceability of the consent to
jurisdiction set forth in Section 8.12(a) of the Credit Agreement.
(d) We express no opinion as to the effect of the compliance or
noncompliance of the Administrative Agent or any Lender with any state or
federal laws or regulations applicable to the Administrative Agent or any of the
Lenders because of the Administrative Agent's or any such Lender's legal or
regulatory status, the nature of the business of the Administrative Agent of any
such Lender or the qualification of any such party to conduct business in any
jurisdiction.
The opinions expressed herein are being delivered to you as of the
date hereof and are solely for your benefit in connection with the transactions
contemplated in the Credit Agreement and may not be relied on in any manner or
for any purpose by any other person or entity, nor any copies published,
communicated or otherwise made available in whole or in part to any other person
or entity, without our express prior written consent, except that you may
furnish copies thereof to each party that becomes a Lender after the date hereof
pursuant to the Credit Agreement, and such parties may rely on this opinion as
if it had been originally addressed to them.
We do not express any opinion, either implicitly or otherwise, on any
issue not expressly addressed in numbered Paragraphs 1 through 5. The opinions
expressed above are based solely on facts, laws and regulations existing and in
effect on the date hereof, and we assume no obligation to revise or supplement
this opinion should such facts change or should such laws or regulations be
changed by legislative or regulatory action, judicial decision or otherwise,
notwithstanding that such changes may affect the legal analysis or conclusions
contained in this opinion.
Very truly yours,
EXHIBIT E TO THE CREDIT AGREEMENT
TERMS OF SUBORDINATION
1. Reference is made to (a) the Credit Agreement dated as of May 29,
1998 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT") among True North Communications Inc., a Delaware corporation
(the "COMPANY"), the banks, financial institutions and other institutional
lenders (collectively, the "LENDERS") party thereto and Citibank, N.A., as
administrative agent (together with any successor appointed pursuant to Article
VII of the Credit Agreement, the "ADMINISTRATIVE AGENT") for the Lenders
thereunder, and (b) the loans and advances made by [NAME OF SUBSIDIARY OF THE
COMPANY MAKING LOANS OR ADVANCES] (the "SUBORDINATED CREDITOR") to [NAME OF
BORROWER] (the "PAYOR") (such loans and advances being, collectively, the
"SUBORDINATED INDEBTEDNESS"). Capitalized terms not otherwise defined in this
Agreement shall have the same meanings as specified therefor in the Credit
Agreement.
2. The Subordinated Indebtedness is, and shall be, subordinate and
subject in right of payment, to the extent and in the manner hereinafter set
forth, to the prior payment in full of all obligations of the Payor now or
hereafter existing under or in respect of (a) the Credit Agreement and the
Notes, whether direct or indirect, absolute or contingent, and whether for
principal, interest (including, without limitation, interest accruing after the
filing of a petition initiating any proceeding referred to in paragraph 5 below,
whether or not such interest accrues after the filing of such petition for
purposes of the U.S. Federal Bankruptcy Code or is an allowed claim in such
proceeding), fees, commissions, expenses or otherwise and (b) any and all
amendments, modifications, extensions, refinancings, renewals and refundings of
the obligations referred to in clause (a) of this paragraph 2 that are made in
accordance with the applicable terms thereof (all such obligations under clauses
(a) and (b) of this paragraph 2 being, collectively, the "SENIOR INDEBTEDNESS").
For the purposes of the provisions hereof, the Senior Indebtedness shall not be
deemed to have been paid in full until the latest of (i) date of payment in full
in cash of the aggregate principal amount of all outstanding Advances and all
interest accrued thereon, all fees and expenses then due and payable in
connection therewith and all other Senior Indebtedness then due and payable and
(ii) the Revolver Termination Date.
3. So long as the Senior Indebtedness shall not have been paid in
full, the Subordinated Creditor shall not (a) ask, demand or ▇▇▇ for, or except
in the ordinary course of business and so long as no Default under Section
6.01(a) or 6.01(e) of the Credit Agreement or Event of Default shall have
occurred and be continuing, take or receive from the Payor, directly or
indirectly, in cash or other property or by setoff or in any manner (including,
without limitation, from or by way of collateral), payment of all or any of the
Subordinated Indebtedness, (b) commence, or join with any creditor other than
the Administrative Agent in commencing, or directly or indirectly cause the
Payor to commence, or assist the Payor in commencing, any proceeding referred to
in paragraph 5 below or (c) request or accept any collateral or other security
for the Subordinated Indebtedness. If the Subordinated Creditor, in
contravention hereof, shall commence, prosecute or participate in any proceeding
referred to in paragraph 5 below, then the Administrative Agent or any Lender
may intervene and interpose as a defense or plea the terms of this Agreement in
its own name or in the name of the Subordinated Creditor.
4. Upon the occurrence and during the continuance of a Default under
Section 6.01(a) or 6.01(e) of the Credit Agreement or an Event of Default, no
payment or distribution of any assets of the Payor of any kind or character
(including, without limitation, any payment that may be payable by reason of any
other Indebtedness of the Payor being subordinated to payment of the
Subordinated Indebtedness) shall be made by or on behalf of the Payor for or on
account of any Subordinated Indebtedness, and the Subordinated Creditor shall
not ask, demand, ▇▇▇ for, take or receive from the Payor, directly or
indirectly,
E-ii
in cash or other property or by setoff or in any other manner (including,
without limitation, from or by way of collateral), payment of all or any of the
Subordinated Indebtedness, unless and until such Default or Event of Default
shall have been cured or waived in writing or such Senior Indebtedness shall
have been paid in full, after which the Payor may resume making any and all
required payments in respect of the Subordinated Indebtedness (including any
missed payments).
5. In the event of any dissolution, winding up, liquidation,
arrangement, reorganization, adjustment, protection, relief or composition of
the Payor or its debts, whether voluntary or involuntary, in any bankruptcy,
insolvency, arrangement, reorganization, receivership, relief or other similar
case or proceeding under the United States Federal Bankruptcy Code or any other
federal, state or foreign bankruptcy, insolvency or similar law or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Payor or otherwise, the Administrative Agent, for its
benefit and the ratable benefit of the Lenders, shall be entitled to receive
payment in full of all of the Senior Indebtedness before the Subordinated
Creditor is entitled to receive any payment or distribution of any kind or
character on account of all or any of the Subordinated Indebtedness, and, to
that end, any payment or distribution of any kind or character (whether in cash,
property or securities) that otherwise would be payable or deliverable upon or
with respect to the Subordinated Indebtedness in any such dissolution, winding
up, liquidation, case, proceeding, assignment, marshalling or otherwise
(including, without limitation, any payment that may be payable by reason of any
other Indebtedness of the Payor being subordinated to payment of the
Subordinated Indebtedness) shall be paid or delivered directly to the
Administrative Agent, for its benefit and for the ratable benefit of the
Lenders, for application (in the case of cash) to, or to be held as collateral
(in the case of noncash property and securities) for, the payment or prepayment
of the Senior Indebtedness until all of the Senior Indebtedness shall have been
paid in full.
6. In the event that any Subordinated Indebtedness is declared due
and payable before its stated maturity, if any, the Administrative Agent, for
its benefit and the ratable benefit of the Lenders, shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all of
the Senior Indebtedness before the Subordinated Creditor is entitled to receive
any payment (including, without limitation, any payment that may be payable by
reason of the payment of any other Indebtedness of the Payor being subordinated
to the payment of the Subordinated Indebtedness) by the Payor on account of the
Subordinated Indebtedness.
7. Until such time as the Senior Indebtedness has been paid in full,
if any proceeding referred to in paragraph 5 above is commenced by or against
the Payor:
(a) the Administrative Agent is hereby irrevocably authorized and
empowered (in its own name or in the name of the Subordinated Creditor or
otherwise), but shall have no obligation, to demand, ▇▇▇ for, collect and
receive every payment or distribution referred to in paragraph 5 above and
give acquittance therefor, and to file claims and proofs of claim and take
such other action as it may deem necessary or advisable for the exercise or
enforcement of any of the rights or interests of the Administrative Agent
or any of the Lenders hereunder; and
(b) the Subordinated Creditor shall duly and promptly take such
action as the Administrative Agent may request (i) to collect the
Subordinated Indebtedness for the account of the Administrative Agent, for
its benefit and the ratable benefit of the Lenders, and to file appropriate
claims or proofs of claim in respect of the Subordinated Indebtedness, (ii)
to execute and deliver to the Administrative Agent such powers of attorney,
assignments or other instruments as the Administrative Agent may request in
order to enable such Administrative Agent to enforce any
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and all claims with respect to the Subordinated Indebtedness and (iii) to
collect and receive any and all payments or distributions that may be
payable or deliverable upon or with respect to the Subordinated
Indebtedness.
8. All payments or distributions upon or with respect to the
Subordinated Indebtedness that are received by the Subordinated Creditor
contrary to the provisions of this Agreement shall be received in trust for the
benefit of the Administrative Agent and the Lenders, shall be segregated from
other property or funds of the Subordinated Creditor and shall be forthwith paid
over or delivered directly to the Administrative Agent, for its benefit and the
ratable benefit of the Lenders, in the same form as so received (with any
necessary endorsement or assignment) to be applied (in the case of cash) to, or
to be held as collateral (in the case of noncash property and securities) for,
the payment or prepayment of the Senior Indebtedness in accordance with the
terms of the Credit Agreement and the Notes, until all of the Senior
Indebtedness shall have been paid in full.
9. To the extent that the Company, the Subordinated Creditor or any
of their respective Subsidiaries or any other guarantor of or provider of
collateral for the Senior Indebtedness shall make any payment on the Senior
Indebtedness that is subsequently invalidated, declared to be fraudulent or
preferential or set aside or is required to be repaid to a trustee, receiver or
any other party under any applicable bankruptcy, insolvency or similar law or
equitable cause (any such payment being a "VOIDED PAYMENT"), then to the extent
of such Voided Payment, that portion of the Senior Indebtedness that had been
previously satisfied by such Voided Payment shall be reinstated and continue in
full force and effect as if such Voided Payment had never been made. To the
extent that the Subordinated Creditor shall have received any payments
subsequent to the date of the initial receipt of such Voided Payment by the
Administrative Agent or any Lender and such payments have not been invalidated,
declared to be fraudulent or preferential or set aside or required to be repaid
to a trustee, receiver or any other party under any applicable bankruptcy,
insolvency or similar law or equitable cause, the Subordinated Creditor shall be
obligated and hereby agrees that any such payment so made or received shall be
deemed to have been received in trust for the benefit of the Administrative
Agent and the Lenders, and the Subordinated Creditor hereby agrees to pay to the
Administrative Agent and the Lenders, upon demand, the full amount so received
by the Subordinated Creditor during such period of time to the extent necessary
to fully restore to the Administrative Agent and the Lenders the amount of such
Voided Payment, which amount shall be applied as set forth above in the
paragraph 8.
10. The Administrative Agent is hereby authorized to demand specific
performance of the subordination provisions of this Agreement, whether or not
the Payor shall have complied with any of the provisions hereof applicable to
it, at any time when the Subordinated Creditor shall have failed to comply with
any of the subordination provisions of this Agreement. The Subordinated
Creditor hereby irrevocably waives any defense based on the adequacy of a remedy
at law which might be asserted as a bar to such remedy of specific performance.
11. No payment or distribution to the Administrative Agent or any
Lender pursuant to the provisions of this Agreement shall entitle the
Subordinated Creditor to exercise any rights of subrogation in respect thereof,
nor shall the Subordinated Creditor have any right of reimbursement,
restitution, exoneration, contribution or indemnification whatsoever from any
property or assets of the Payor, the Company or any of the other guarantors,
sureties or providers of collateral security for the Senior Indebtedness, or any
right to participate in any claim or remedy of the Administrative Agent or any
Lender against the Payor or the Company, 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 the Payor
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or the Company, directly or indirectly, in cash or other property or by setoff
or in any other manner, payment or security on account of such claim, remedy or
right), until (i) all of the Senior Indebtedness shall have been paid in full
and all of the commitments shall have expired or been terminated and (ii) the
Revolver Termination Date.
12. The holders of the Senior Indebtedness may, at any time and from
time to time, without any consent of or notice to the Subordinated Creditor or
any other holder of the Subordinated Indebtedness and without impairing or
releasing the obligations of the Subordinated Creditor hereunder:
(a) change the manner, place or terms of payment, or change or extend
the time of payment of, or renew payment or change or extend the time or
payment of, or renew or alter, the Senior Indebtedness (including any
change in the rate of interest thereon), or amend in any manner any
agreement under which any of the Senior Indebtedness is outstanding;
(b) release anyone liable in any manner under or in respect of the
Senior Indebtedness;
(c) exercise or refrain from exercising any rights against the Payor
or any other Person; and
(d) apply to the Senior Indebtedness any sums from time to time
received.
13. The foregoing provisions regarding subordination are and are
intended solely for the purpose of defining the relative rights of the holders
of the Senior Indebtedness, on the one hand, and the holders of the Subordinated
Indebtedness, on the other hand. Such provisions are for the benefit of the
holders of the Senior Indebtedness and shall inure to the benefit of, and shall
be enforceable by, the Administrative Agent, on behalf of itself and the
Lenders, directly against the holders of the Subordinated Indebtedness, and no
holder of the Senior Indebtedness shall be prejudiced in its right to enforce
subordination of any of the Subordinated Indebtedness by any act or failure to
act by the Payor or anyone in custody of its property or assets. Nothing
contained in the foregoing provisions is intended to or shall impair, as between
the Payor and the holders of the Subordinated Indebtedness, the obligations of
the Payor to such holders.
14. The agreement incorporating the foregoing provisions will be
governed by, and construed in accordance with, the laws of the State of New
York.