Exhibit 10.2
EXECUTION COPY
U.S. $1,500,000,000
AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
Dated as of May 24, 2004
Among
OMNICOM FINANCE INC.
OMNICOM CAPITAL INC.
and
OMNICOM FINANCE PLC
as Borrowers
------------
OMNICOM GROUP INC.
as Guarantor
------------
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
------------------
CITIGROUP GLOBAL MARKETS INC.
and
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
as Lead Arrangers and Book Managers
-----------------------------------
ABN AMRO BANK N.V.
as Syndication Agent
--------------------
JPMORGAN CHASE BANK
and
HSBC BANK USA
as Documentation Agents
-----------------------
and
CITIBANK, N.A.
as Administrative Agent
-----------------------
TABLE OF CONTENTS
ARTICLE I
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 12
SECTION 1.03. Accounting Terms 12
ARTICLE II
SECTION 2.01. The Advances and Letters of Credit 12
SECTION 2.02. Making the Advances 13
SECTION 2.03. Issuance of and Drawings and Reimbursement
Under Letters of Credit 14
SECTION 2.04. Fees 15
SECTION 2.05. Optional Termination or Reduction of
the Commitments 16
SECTION 2.06. Repayment of Advances and Letter of
Credit Drawings 16
SECTION 2.07. Interest on Advances 17
SECTION 2.08. Interest Rate Determination 17
SECTION 2.09. Optional Conversion of Advances 18
SECTION 2.10. Prepayments of Advances 19
SECTION 2.11. Increased Costs 19
SECTION 2.12. Illegality 20
SECTION 2.13. Payments and Computations 20
SECTION 2.14. Taxes 22
SECTION 2.15. Sharing of Payments, Etc. 24
SECTION 2.16. Evidence of Debt 24
SECTION 2.17. Use of Proceeds 25
SECTION 2.18. Increase in the Aggregate Commitments 25
i
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness
of Section 2.01 26
SECTION 3.02. Conditions Precedent to Each Borrowing,
Each Issuance and each Commitment Increase. 27
SECTION 3.03. Determinations Under Section 3.01 28
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Guarantor 28
ARTICLE V
SECTION 5.01. Affirmative Covenants 29
SECTION 5.02. Negative Covenants 31
SECTION 5.03. Financial Covenants 33
ARTICLE VI
SECTION 6.01. Events of Default 33
SECTION 6.02. Actions in Respect of Letters of
Credit upon Default 35
ARTICLE VII
SECTION 7.01. Guaranty 36
SECTION 7.02. Guaranty Absolute 36
SECTION 7.03. Waivers and Acknowledgements 37
SECTION 7.04. Subrogation 37
SECTION 7.05. Subordination 38
SECTION 7.06. Continuing Guaranty; Assignments 38
ARTICLE VIII
SECTION 8.01. Authorization and Action 39
SECTION 8.02. Agent's Reliance, Etc. 39
ii
SECTION 8.03. Citibank and Affiliates 39
SECTION 8.04. Lender Credit Decision 39
SECTION 8.05. Indemnification 39
SECTION 8.06. Successor Agent 40
SECTION 8.07. Sub-Agent 40
SECTION 8.08. Other Agents. 41
ARTICLE IX
SECTION 9.01. Amendments, Etc. 41
SECTION 9.02. Notices, Etc. 41
SECTION 9.03. No Waiver; Remedies 42
SECTION 9.04. Costs and Expenses 42
SECTION 9.05. Right of Set-off 43
SECTION 9.06. Binding Effect 43
SECTION 9.07. Assignments and Participations 43
SECTION 9.08. Confidentiality 45
SECTION 9.09. Governing Law 45
SECTION 9.10. Execution in Counterparts 45
SECTION 9.11. Judgment 45
SECTION 9.12. Jurisdiction, Etc. 46
SECTION 9.13. Substitution of Currency 46
SECTION 9.14. No Liability of the Issuing Banks 46
SECTION 9.15. Patriot Act 47
SECTION 9.16. Waiver of Jury Trial 48
iii
Schedules
---------
Schedule I - List of Applicable Lending Offices
Schedule 2.01(b) - Existing Letters of Credit
Schedule 3.01(b) - Disclosed Litigation
Schedule 5.02(a) - Existing Liens
Schedule 5.02(d) - Existing Debt
Exhibits
--------
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Opinion of New York Counsel for the Loan Parties
Exhibit D-2 - Form of Opinion of English Counsel for OFP
iv
EXECUTION
AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
Dated as of May 24, 2004
OMNICOM FINANCE INC., a Delaware corporation ("OFI"), OMNICOM
CAPITAL INC., a Connecticut corporation ("OCI"), and OMNICOM FINANCE PLC, a
corporation organized under the laws of England and Wales ("OFP"; OFI, OCI and
OFP are each a "Borrower" and collectively, the "Borrowers"), OMNICOM GROUP
INC., a New York corporation (the "Guarantor"), the banks, financial
institutions and other institutional lenders (the "Initial Lenders") and initial
issuing banks (the "Initial Issuing Banks") listed on the signature pages
hereof, CITIGROUP GLOBAL MARKETS INC. and ▇.▇. ▇▇▇▇▇▇ SECURITIES INC., as lead
arrangers and book managers, ABN AMRO BANK N.V., as syndication agent, JPMORGAN
CHASE BANK and HSBC BANK USA, as documentation agents, and CITIBANK, N.A.
("Citibank"), as administrative agent (the "Agent") for the Lenders (as
hereinafter defined), agree as follows:
PRELIMINARY STATEMENT. The Borrowers, the Guarantor, the lenders
parties thereto and Citibank, as agent, are parties to a Three Year Credit
Agreement dated as of November 14, 2002 (the "Existing Credit Agreement").
Subject to the satisfaction of the conditions set forth in Section 3.01, the
Borrower, the parties hereto and Citibank, as Agent, desire to amend and restate
the Existing Credit Agreement as herein set forth.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" means an advance by an Issuing Bank or a Lender pursuant
to Section 2.03(c) or by a Lender to a Borrower as part of a Borrowing
pursuant to Section 2.01 and may refer to a Base Rate Advance or a
Eurocurrency Rate Advance (each of which shall be a "Type" of Advance).
"Affiliate" means, as to any Person, any other Person (other than an
individual) that, directly or indirectly, controls, is controlled by or is
under common control with such Person; provided that, for purposes of
Section 5.01(h), an Affiliate of a Borrower shall include any Person that
(x) is a director or officer of such Person or (y) has the possession,
direct or indirect, of the power to vote 5% or more of the Voting Stock of
such Person. A Person shall be deemed to control another Person if such
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of Voting Stock, by contract or otherwise.
"Agent's Account" means (a) in the case of Advances denominated in
Dollars, the account of the Agent maintained by the Agent at Citibank at
its office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No.
▇▇▇▇▇▇▇▇, Attention: Bank Loan Syndications, (b) in the case of Advances
denominated in any Committed Currency, the account of the Sub-Agent
designated in writing from time to time by the Agent to the Borrowers and
the Lenders for such purpose and (c) in any such case, such other account
of the Agent as is designated in writing from time to time by the Agent to
the Borrowers and the Lenders for such purpose.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurocurrency Lending Office in the case of a Eurocurrency
Rate Advance.
"Applicable Margin" means (a) for Base Rate Advances, 0% per annum
and (b) for Eurocurrency Rate Advances, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on such
date as set forth below:
------------------------------------------------------------
Public Debt Rating Applicable Margin for
S&P/▇▇▇▇▇'▇ Eurocurrency Rate Advances
------------------------------------------------------------
▇▇▇▇▇ ▇
A+ or A1 or above 0.150%
------------------------------------------------------------
Level 2
A or A2 0.255%
------------------------------------------------------------
Level 3
A- or A3 0.370%
------------------------------------------------------------
▇▇▇▇▇ ▇
BBB+ or Baa1 0.475%
------------------------------------------------------------
Level 5
BBB or Baa2 0.700%
------------------------------------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 0.750%
------------------------------------------------------------
"Applicable Percentage" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on such
date as set forth below:
------------------------------------------------------------
Public Debt Rating Applicable
S&P/▇▇▇▇▇'▇ Percentage
------------------------------------------------------------
▇▇▇▇▇ ▇
A+ or A1 or above 0.100%
------------------------------------------------------------
Level 2
A or A2 0.120%
------------------------------------------------------------
Level 3
A- or A3 0.130%
------------------------------------------------------------
▇▇▇▇▇ ▇
BBB+ or Baa1 0.150%
------------------------------------------------------------
Level 5
BBB or Baa2 0.175%
------------------------------------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 0.250%
------------------------------------------------------------
"Applicable Utilization Fee" means, as of any date that the sum of
the aggregate Advances plus the Available Amount of all Letters of Credit
exceed 50% of the aggregate Commitments, a percentage per annum determined
by reference to the Public Debt Rating in effect on such date as set forth
below:
------------------------------------------------------------
Public Debt Rating Applicable
S&P/▇▇▇▇▇'▇ Utilization Fee
------------------------------------------------------------
▇▇▇▇▇ ▇
A+ or A1 or above 0.125%
------------------------------------------------------------
Level 2
A or A2 0.125%
------------------------------------------------------------
Level 3
A- or A3 0.125%
------------------------------------------------------------
▇▇▇▇▇ ▇
BBB+ or Baa1 0.125%
------------------------------------------------------------
2
------------------------------------------------------------
Public Debt Rating Applicable
S&P/▇▇▇▇▇'▇ Utilization Fee
------------------------------------------------------------
Level 5
BBB or Baa2 0.125%
------------------------------------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 0.250%
------------------------------------------------------------
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section 2.18(d).
"Assumption Agreement" has the meaning specified in Section
2.18(d)(ii).
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"Bankruptcy Law" means Title 11, U.S. Code, or any similar foreign,
federal or state law for the relief of debtors.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is
no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1%
per annum, plus (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates
in the United States for three-month certificates of deposit of
major United States money market banks, such three-week moving
average (adjusted to the basis of a year of 360 days) being
determined weekly on each Monday (or, if such day is not a Business
Day, on the next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of deposit
dealers of recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily percentages
specified during such three-week period by the Board of Governors of
the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement) for
Citibank with respect to liabilities consisting of or including
(among other liabilities) three-month Dollar non-personal time
deposits in the United States, plus (iii) the average during such
three-week period of the annual assessment rates estimated by
Citibank for determining the then current annual assessment payable
by Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring Dollar deposits of Citibank in the United
States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance denominated in Dollars that
bears interest as provided in Section 2.07(a)(i).
"Borrowing" means (a) with respect to the making of Advances (i) a
borrowing consisting of simultaneous Advances of the same Type made by
each of the Lenders pursuant to Section 2.01 or (ii) a borrowing
consisting of the Advances made pursuant to Section 2.03(c) by each of the
Lenders, other than
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the Issuing Bank, and by the Issuing Bank, to the extent of its Ratable
Share of its payment of a draft drawn on a Letter of Credit that is not
reimbursed by the applicable Borrower on the date made; and (b) in other
contexts (i) that portion of the Advances comprised of all outstanding
Base Rate Advances and (ii) that portion of the Advances converted into,
or continued as, Eurocurrency Rate Advances having the same Interest
Period.
"Borrowing Minimum" means, in respect of Advances denominated in
Dollars, $10,000,000, in respect of Advances denominated in Sterling,
(pound)10,000,000 and, in respect of Advances denominated in Euros,
(euro)10,000,000.
"Borrowing Multiple" means, in respect of Advances denominated in
Dollars, $1,000,000 in respect of Advances denominated in Sterling,
(pound)1,000,000 and, in respect of Advances denominated in Euros,
(euro)1,000,000.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurocurrency Rate Advances, on
which dealings are carried on in the London interbank market and banks are
open for business in London and in the country of issue of the currency of
such Eurocurrency Rate Advance (or, in the case of an Advance denominated
in Euro, on which the Trans-European Automated Real-Time Gross Settlement
Express Transfer (TARGET) System is open).
"Commitment" means a Revolving Credit Commitment or a Letter of
Credit Commitment.
"Commitment Date" has the meaning specified in Section 2.18(b).
"Commitment Increase" has the meaning specified in Section 2.18(a).
"Committed Currencies" means lawful currency of the United Kingdom
of Great Britain and Northern Ireland and Euros.
"Confidential Information" means information that a Loan Party
furnishes to the Agent or any Lender in a writing designated as
confidential, but does not include any such information that is or becomes
generally available to the public or that is or becomes available to the
Agent or such Lender from a source other than a Loan Party.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Convert", "Conversion" and "Converted" each refers to a conversion
of Advances of one Type into Advances of the other Type pursuant to
Section 2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services (other
than earn-out payment obligations of such Person in connection with the
purchase of property or services to the extent they are still contingent),
(c) all obligations of such Person evidenced by notes, bonds, debentures
or other similar instruments, (d) all obligations of such Person created
or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even though the rights
and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
obligations of such Person as lessee under leases that have been or should
be, in accordance with GAAP, recorded as capital leases, (f) all
obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (g) all
obligations of such Person in respect of Hedge Agreements, (h) all Debt of
others referred to in clauses (a) through (g) above or clause (i) below
and other payment obligations guaranteed directly or indirectly in any
manner by such Person, or in effect guaranteed directly or indirectly by
such Person through an agreement (1) to pay or purchase such Debt or to
advance or supply funds for the payment or purchase of such Debt, (2) to
4
purchase, sell or lease (as lessee or lessor) property, or to purchase or
sell services, primarily for the purpose of enabling the debtor to make
payment of such Debt or to assure the holder of such Debt against loss,
(3) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or (4)
otherwise to assure a creditor against loss, and (i) all Debt referred to
in clauses (a) through (h) above secured by (or for which the holder of
such Debt has an existing right, contingent or otherwise, to be secured
by) any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Debt.
"Debt for Borrowed Money" of any Person means all items that, in
accordance with GAAP, would be classified as indebtedness on a
Consolidated balance sheet of such Person.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
"Dollars" and the "$" sign each means lawful currency of the United
States of America.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assumption Agreement or the
Assignment and Acceptance pursuant to which it became a Lender, or such
other office of such Lender as such Lender may from time to time specify
to the Borrowers and the Agent.
"EBITDA" means, for any period, net income (or net loss) plus the
sum of (a) net interest expense, (b) income tax expense, (c) depreciation
expense and (d) amortization expense, in each case determined in
accordance with GAAP for such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Agent, each Issuing
Bank and, unless an Event of Default has occurred and is continuing at the
time any assignment is effected in accordance with Section 9.07, the
Guarantor, such approval not to be unreasonably withheld or delayed;
provided, however, that neither the Guarantor nor an Affiliate of the
Guarantor shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of liability
or potential liability, investigation, proceeding, consent order or
consent agreement relating in any way to any Environmental Law,
Environmental Permit or hazardous materials or arising from alleged injury
or threat of injury to health, safety or the environment, including,
without limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or any third
party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree
or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural
resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or
discharge of hazardous materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
5
"Equivalent" in Dollars of any Committed Currency on any date means
the equivalent in Dollars of such Committed Currency determined by using
the quoted spot rate at which the Sub-Agent's principal office in London
offers to exchange Dollars for such Committed Currency in London at
approximately 4:00 P.M. (London time) (unless otherwise indicated by the
terms of this Agreement) on such date as is required pursuant to the terms
of this Agreement, and the "Equivalent" in any Committed Currency of
Dollars means the equivalent in such Committed Currency of Dollars
determined by using the quoted spot rate at which the Sub-Agent's
principal office in London offers to exchange such Committed Currency for
Dollars in London at approximately 4:00 P.M. (London time) (unless
otherwise indicated by the terms of this Agreement) on such date as is
required pursuant to the terms of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Guarantor's controlled group, or under common
control with the Guarantor, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are
met with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30 days;
(b) the application for a minimum funding waiver with respect to a Plan;
(c) the provision by the administrator of any Plan of a notice of intent
to terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including
any such notice with respect to a plan amendment referred to in Section
4041(e) of ERISA); (d) the cessation of operations at a facility of the
Guarantor or any ERISA Affiliate in the circumstances described in Section
4062(e) of ERISA; (e) the withdrawal by the Guarantor or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for which it
was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f)
the conditions for the imposition of a lien under Section 302(f) of ERISA
shall have been met with respect to any Plan; (g) the adoption of an
amendment to a Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"EURIBO Rate" means, for any Interest Period for each Eurocurrency
Rate Advance comprising part of the same Borrowing, the rate per annum
appearing on Page 248 of the Telerate Service (or on any successor or
substitute page of such Service, or any successor to or substitute for
such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Agent from
time to time for purposes of providing quotations of interest rates
applicable to deposits in Euro by reference to the Banking Federation of
the European Union Settlement Rates for deposits in Euro) at approximately
10:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period, as the rate for deposits in Euros with a maturity
comparable to such Interest Period or, if for any reason such rate is not
available, the average (rounded upward to the nearest whole multiple of
1/16 of 1% per annum, if such average is not such a multiple) of the
respective rates per annum at which deposits in Euros are offered by the
principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurocurrency Rate Advance
comprising part of such Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period (subject, however,
to the provisions of Section 2.08).
6
"Euro" means the lawful currency of the European Union as
constituted by the Treaty of Rome which established the European
Community, as such treaty may be amended from time to time and as referred
to in the EMU legislation.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"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 Assumption Agreement or
the Assignment and Acceptance pursuant to which it became a Lender (or, if
no such office is specified, its Domestic Lending Office), or such other
office of such Lender as such Lender may from time to time specify to the
Borrowers and the Agent.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by dividing
(a)(i) in the case of any Advance denominated in Dollars or any Committed
Currency other than Euro, the rate per annum (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum) appearing on Telerate
Markets Page 3750 (or any successor page) as the London interbank offered
rate for deposits in Dollars or the applicable Committed Currency at
approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest
Period or, if for any reason such rate is not available (but subject to
the provisions of Section 2.08), the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not
such a multiple) of the rate per annum at which deposits in Dollars or the
applicable Committed Currency is offered by the principal office of each
of the Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in an amount substantially equal to such
Reference Bank's Eurocurrency Rate Advance comprising part of such
Borrowing to be outstanding during such Interest Period and for a period
equal to such Interest Period or, (ii) in the case of any Advance
denominated in Euros, the EURIBO Rate by (b) a percentage equal to 100%
minus the Eurocurrency Rate Reserve Percentage for such Interest Period.
"Eurocurrency Rate Advance" means an Advance denominated in Dollars
or a Committed Currency that bears interest as provided in Section
2.07(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest Period for
all Eurocurrency Rate Advances comprising part of the same Borrowing means
the reserve percentage applicable two Business Days before the first day
of such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate
on Eurocurrency Rate Advances is determined) having a term equal to such
Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing selected
by it.
"GAAP" has the meaning specified in Section 1.03.
7
"Guaranteed Obligations" has the meaning specified in Section 7.01.
"Guaranty" means the provisions of Article VII.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Increase Date" has the meaning specified in Section 2.18(a).
"Increasing Lender" has the meaning specified in Section 2.18(b).
"Information Memorandum" means the information memorandum dated
April 15, 2004 used by the Agent in connection with the syndication of the
Commitments.
"Interest Period" means, for each Eurocurrency Rate Advance
comprising part of the same 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 Rate Advance and ending on the
last day of the period selected by the applicable Borrower pursuant to the
provisions below and, thereafter, with respect to Eurocurrency Rate
Advances, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by such Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, and subject to clause (c) of this definition, nine or twelve
months, as the applicable Borrower may, upon notice received by the Agent
not later than 11:00 A.M. (New York City time) on the third Business Day
prior to the first day of such Interest Period, select; provided, however,
that:
(a) the Borrowers may not select any Interest Period that ends
after the Termination Date;
(b) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(c) in the case of any such Borrowing, the Borrowers shall not
be entitled to select an Interest Period having duration of nine or
twelve months unless, by 2:00 P.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period, each
Lender notifies the Agent that such Lender will be providing funding
for such Borrowing with such Interest Period (the failure of any
Lender to so respond by such time being deemed for all purposes of
this Agreement as an objection by such Lender to the requested
duration of such Interest Period); provided that, if any or all of
the Lenders object to the requested duration of such Interest
Period, the duration of the Interest Period for such Borrowing shall
be one, two, three or six months, as specified by the Borrower
requesting such Borrowing in the applicable Notice of Borrowing as
the desired alternative to an Interest Period of nine or twelve
months;
(d) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such extension
would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(e) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
8
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Issuing Bank" means an Initial Issuing Bank or any Eligible
Assignee to which a portion of the Letter of Credit Commitments hereunder
has been assigned pursuant to Section 9.07 so long as such Eligible
Assignee expressly agrees to 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 an Issuing Bank and notifies the Agent of its
Applicable Lending Office (which information shall be recorded by the
Agent in the Register), for so long as such Initial Issuing Bank or
Eligible Assignee, as the case may be, shall have a Letter of Credit
Commitment.
"L/C Cash Deposit Account" means an interest bearing cash deposit
account to be established and maintained by the Agent, over which the
Agent shall have sole dominion and control, upon such terms as may be
reasonably satisfactory to the Agent.
"L/C Related Documents" has the meaning specified in Section
2.06(b)(i).
"Lenders" means the Initial Lenders, each Issuing Bank, each
Assuming Lender that shall become a party hereto pursuant to Section 2.18
and each Person that shall become a party hereto pursuant to Section 9.07.
"Letter of Credit" has the meaning specified in Section 2.01(b).
"Letter of Credit Agreement" has the meaning specified in Section
2.03(a).
"Letter of Credit Commitment" means, with respect to each Issuing
Bank, the obligation of such Issuing Bank to issue Letters of Credit for
the account of the Borrowers in (a) the maximum aggregate Available Amount
set forth opposite the Issuing Bank's name on the signature pages hereto
under the caption "Letter of Credit Commitment" or (b) if such Issuing
Bank has entered into one or more Assignment and Acceptances, the amount
set forth for such Issuing Bank in the Register maintained by the Agent
pursuant to Section 9.07(d) as such Issuing Bank's "Letter of Credit
Commitment", in each case as such amount may be reduced prior to such time
pursuant to Section 2.05.
"Letter of Credit Facility" means, at any time, an amount equal to
the least of (a) the aggregate amount of the Issuing Banks' Letter of
Credit Commitments at such time, (b) $100,000,000 and (c) the aggregate
amount of the Revolving Credit Commitments, as such amount may be reduced
at or prior to such time pursuant to Section 2.05.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement
intended to provide security for the payment or performance of an
obligation, including, without limitation, the lien or retained security
title of a conditional vendor and any easement, right of way or other
encumbrance on title to real property.
"Loan Party" means each Borrower and the Guarantor.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance or
properties of the Guarantor or the Guarantor and its Subsidiaries taken as
a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance or
properties of the Guarantor or the Guarantor and its Subsidiaries taken as
a whole, (b) the rights and remedies of the Agent or any Lender under this
Agreement or any Note or (c) the ability of any Loan Party to perform its
obligations under this Agreement or any Note.
9
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Guarantor or any ERISA Affiliate
is making or accruing an obligation to make contributions, or has within
any of the preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Guarantor or any ERISA Affiliate and at least one Person other than the
Guarantor and the ERISA Affiliates or (b) was so maintained and in respect
of which the Guarantor or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to
be terminated.
"Note" means a promissory note of a Borrower payable to the order of
any Lender, delivered pursuant to a request made under Section 2.16 in
substantially the form of Exhibit A hereto, evidencing the aggregate
indebtedness of such Borrower to such Lender resulting from the Advances
made by such Lender to such Borrower.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"Payment Office" means, for any Committed Currency, such office of
Citibank as shall be from time to time selected by the Agent and notified
by the Agent to the Borrowers and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under Section
5.01(b) hereof; (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and other similar
Liens arising in the ordinary course of business securing obligations that
are not overdue for a period of more than 30 days or that are being
contested in good faith and by appropriate proceedings that prevent the
forfeiture or sale of the assets subject to such Lien; (c) pledges or
deposits to secure obligations under workers' compensation laws or similar
legislation or to secure public or statutory obligations or, in any such
case, to secure reimbursement obligations under letters of credit or bonds
issued to support such obligations; and (d) easements, rights of way and
other encumbrances on title to real property that do not render title to
the property encumbered thereby unmarketable or materially adversely
affect the use of such property for its present purposes.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Post-Petition Interest" has the meaning specified in Section 7.05.
"PTR Scheme" shall mean the Provisional Treaty Relief Scheme as
described in Inland Revenue Guidelines dated July 1999 and administered by
the Inland Revenue's Centre for Non-Residents.
"Public Debt Rating" means, as of any date, the rating that has been
most recently announced by either S&P or Moody's, as the case may be, for
any class of non-credit enhanced long-term senior unsecured debt issued by
the Guarantor or, if either such rating agency shall have issued more than
one such rating, the lowest such rating issued by such rating agency. For
purposes of the foregoing, (a) if only
10
one of S&P and Moody's shall have in effect a Public Debt Rating, the
Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee shall be determined by reference to the available rating;
(b) if neither S&P nor Moody's shall have in effect a Public Debt Rating,
the Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee will be set in accordance with Level 6 under the
definition of "Applicable Margin", "Applicable Percentage" or "Applicable
Utilization Fee", as the case may be; (c) if the ratings established by
S&P and Moody's shall fall within different levels, the Applicable Margin,
the Applicable Percentage and the Applicable Utilization Fee shall be
based upon the higher rating unless such rating differs by two or more
levels, in which case the applicable level will be deemed to be one level
above the lower of such levels; (d) if any rating established by S&P or
Moody's shall be changed, such change shall be effective as of the date on
which such change is first announced publicly by the rating agency making
such change; and (e) if S&P or Moody's shall change the basis on which
ratings are established, each reference to the Public Debt Rating
announced by S&P or Moody's, as the case may be, shall refer to the then
equivalent rating by S&P or Moody's, as the case may be.
"Ratable Share" of any amount means, with respect to any Lender at
any time, the product of such amount times a fraction the numerator of
which is the amount of such Lender's Revolving Credit Commitment at such
time (or, if the Revolving Credit Commitments shall have been terminated
pursuant to Section 2.05 or 6.01, the aggregate principal amount of such
Lender's Advances) and the denominator of which is the aggregate amount of
all Revolving Credit Commitments at such time (or, if the Revolving Credit
Commitments shall have been terminated pursuant to Section 2.05 or 6.01,
the aggregate principal amount of all outstanding Advances).
"Reference Banks" means Citibank, ABN AMRO Bank N.V., JPMorgan Chase
Bank and HSBC Bank USA.
"Register" has the meaning specified in Section 9.07(d).
"Required Lenders" means at any time Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount (based
on the Equivalent in Dollars at such time) of the Advances owing to
Lenders, or, if no such principal amount is then outstanding, Lenders
having at least a majority in interest of the Commitments.
"Revolving Credit Commitment" means as to any Lender (a) the Dollar
amount set forth opposite such Lender's name on the signature pages hereof
as such Lender's "Revolving Credit Commitment", (b) if such Lender has
become a Lender hereunder pursuant to an Assumption Agreement, the Dollar
amount set forth in such Assumption Agreement or (c) if such Lender has
entered into any Assignment and Acceptance, the Dollar amount set forth
for such Lender in the Register maintained by the Agent pursuant to
Section 9.07(d), as such amount may be reduced pursuant to Section 2.05 or
increased pursuant to Section 2.18.
"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 maintained for employees of the
Guarantor or any ERISA Affiliate and no Person other than the Guarantor
and the ERISA Affiliates or (b) was so maintained and in respect of which
the Guarantor or any ERISA Affiliate could have liability under Section
4069 of ERISA in the event such plan has been or were to be terminated.
"Sub-Agent" means Citibank International plc.
"Subordinated Obligations" has the meaning specified in Section
7.05.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding Voting
11
Stock of such Person, (b) the interest in the capital or profits of such
limited liability company, partnership or joint venture or (c) the
beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Termination Date" means the earlier of (a) May 24, 2009 and (b) the
date of termination in whole of the Commitments pursuant to Section 2.05
or 6.01.
"Unissued Letter of Credit Commitment" means, with respect to any
Issuing Bank, the obligation of such Issuing Bank to issue Letters of
Credit for the account of the Borrowers in an amount equal to the excess
of (a) the amount of its Letter of Credit Commitment over (b) the
aggregate Available Amount of all Letters of Credit issued by such Issuing
Bank.
"Unused Commitment" means, with respect to each Lender at any time,
(a) such Lender's Revolving Credit Commitment at such time minus (b) the
sum of (i) the aggregate principal amount of all Advances made by such
Lender (in its capacity as a Lender) and outstanding at such time, plus
(ii) such Lender's Ratable Share of (A) the aggregate Available Amount of
all the Letters of Credit outstanding at such time and (B) the aggregate
principal amount of all Advances made by each Issuing Bank pursuant to
Section 2.03(c) that have not been ratably funded by such Lender and are
outstanding at such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principles consistent with those applied in
the preparation of the financial statements referred to in Section 4.01(e)
("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION 2.01. The Advances and Letters of Credit. (a) The Advances.
Each Lender severally agrees, on the terms and conditions hereinafter set forth,
to make Advances to the Borrowers from time to time on any Business Day during
the period from the Effective Date until the Termination Date in an amount
(based in respect of any Advances to be denominated in a Committed Currency by
reference to the Equivalent thereof in Dollars determined on the date of
delivery of the applicable Notice of Borrowing) not to exceed such Lender's
Unused Commitment at such time. Each Borrowing under this Section 2.01(a) shall
be in an amount not less than the Borrowing Minimum or an integral multiple of
the Borrowing Multiple in excess thereof and shall consist of Advances of the
same Type and in the same currency made on the same day by the Lenders ratably
according to their respective Revolving Credit Commitments. Within the limits of
each Lender's Revolving Credit Commitment, the Borrowers may borrow under this
Section 2.01(a), prepay pursuant to Section 2.10 and reborrow under this Section
2.01(a).
(b) Letters of Credit. Each Issuing Bank agrees, on the terms and
conditions hereinafter set forth, in reliance upon the agreements of the other
Lenders set forth in this Agreement, to issue letters of credit (each, a "Letter
of Credit") for the account of any Borrower from time to time on any Business
Day during the period from the Effective Date until 30 days before the
Termination Date in an aggregate Available Amount (i) for all Letters of Credit
issued by each Issuing Bank not to exceed at any time the lesser of (x) the
Letter of Credit
12
Facility at such time and (y) such Issuing Bank's Letter of Credit Commitment at
such time and (ii) for each such Letter of Credit not to exceed an amount equal
to the Unused Commitments of the Lenders at such time. No Letter of Credit shall
have an expiration date (including all rights of such Borrower or the
beneficiary to require renewal) later than 10 Business Days before the
Termination Date. Within the limits referred to above, the Borrowers may from
time to time request the issuance of Letters of Credit under this Section
2.01(b). Each letter of credit listed on Schedule 2.01(b) shall be deemed to
constitute a Letter of Credit issued hereunder, and each Lender that is an
issuer of such a Letter of Credit shall, for purposes of Section 2.03, be deemed
to be an Issuing Bank for each such letter of credit, provided than any renewal
or replacement of any such letter of credit shall be issued by an Issuing Bank
pursuant to the terms of this Agreement. The terms "issue", "issued", "issuance"
and all similar terms, when applied to a Letter of Credit, shall include any
renewal or extension thereof or amendment thereto that increases the Available
Amount thereof or otherwise materially increases the Issuing Bank's obligations
thereunder.
SECTION 2.02. Making the Advances. (a) Except as otherwise provided
in Section 2.03(c), each Borrowing shall be made on notice, given not later than
(x) 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Borrowing in the case of a Borrowing consisting of Eurocurrency
Rate Advances denominated in Dollars, (y) 4:00 P.M. (London time) on the third
Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurocurrency Rate Advances denominated in any Committed
Currency, or (z) 11:00 A.M. (New York City time) on the date of the proposed
Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the
applicable Borrower to the Agent (and, in the case of a Borrowing consisting of
Eurocurrency Rate Advances, simultaneously to the Sub-Agent), which shall give
to each Lender prompt notice thereof by telecopier. Each such notice of a
Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed immediately
in writing, or telecopier in substantially the form of Exhibit B hereto,
specifying therein the requested (i) date of such Borrowing, (ii) Type of
Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing,
and (iv) in the case of a Borrowing consisting of Eurocurrency Rate Advances,
initial Interest Period and currency for each such Advance. Each Lender shall,
before 1:00 P.M. (New York City time) on the date of such Borrowing, in the case
of a Borrowing consisting of Advances denominated in Dollars, and before 11:00
A.M. (London time) on the date of such Borrowing, in the case of a Borrowing
consisting of Eurocurrency Rate Advances denominated in any Committed Currency,
make available for the account of its Applicable Lending Office to the Agent at
the applicable Agent's Account, in same day funds, such Lender's ratable portion
of such Borrowing. After the Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article III, the Agent will make such
funds available to the applicable Borrower at the Agent's address referred to in
Section 9.02 or at the applicable Payment Office, as the case may be.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrowers may not select Eurocurrency Rate Advances for
any Borrowing if the aggregate amount of such Borrowing is less than the
Borrowing Minimum or if the obligation of the Lenders to make Eurocurrency Rate
Advances for the requested currency shall then be suspended pursuant to Section
2.08 or 2.12 and (ii) the Eurocurrency Rate Advances may not be outstanding as
part of more than six separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower requesting such Borrowing. In the case of any Borrowing that the
related Notice of Borrowing specifies is to be comprised of Eurocurrency Rate
Advances, the applicable Borrower shall indemnify each Lender against any loss,
cost or expense incurred by such Lender as a result of any failure to fulfill on
or before the date specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III, including, without limitation,
any loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.
(d) Unless the Agent shall have received notice from a Lender prior
to the time of any Borrowing that such Lender will not make available to the
Agent such Lender's ratable portion of such Borrowing, the Agent may assume that
such Lender has made such portion available to the Agent on the date of such
Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the applicable Borrower
on such date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to the Agent, such Lender and
such Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to such Borrower until the date such amount is
repaid to the Agent, at
13
(i) in the case of a Borrower, the higher of (A) the interest rate applicable at
the time to Advances comprising such Borrowing and (B) the cost of funds
incurred by the Agent in respect of such amount and (ii) in the case of such
Lender, (A) the Federal Funds Rate in the case of Advances denominated in
Dollars or (B) the cost of funds incurred by the Agent in respect of such amount
in the case of Advances denominated in Committed Currencies. If such Lender
shall repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Advance as part of such Borrowing for purposes of this
Agreement.
(e) The failure of any Lender to make the Advance to be made by it
as part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. (i) Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (New York City time) on the
fifth Business Day prior to the date of the proposed issuance of such Letter of
Credit (or on such shorter notice as the applicable Issuing Bank may agree), by
any Borrower to any Issuing Bank, and such Issuing Bank shall give the Agent
prompt notice thereof. Each such notice of issuance of a Letter of Credit (a
"Notice of Issuance") shall be by telecopier or telephone, confirmed immediately
in writing, specifying therein the requested (A) date of such issuance (which
shall be a Business Day), (B) Available Amount and currency of such Letter of
Credit, (C) expiration date of such Letter of Credit (which shall not be later
than 10 Business Days before the Termination Date), (D) name and address of the
beneficiary of such Letter of Credit and (E) form of such Letter of Credit, such
Letter of Credit shall be issued pursuant to such application and agreement for
letter of credit as such Issuing Bank may specify to the applicable Borrower for
use in connection with such requested Letter of Credit (a "Letter of Credit
Agreement"). If the requested form of such Letter of Credit is acceptable to
such Issuing Bank in its sole discretion, such Issuing Bank will, upon
fulfillment of the applicable conditions set forth in Article III, make such
Letter of Credit available to the Borrower requesting such issuance at its
office referred to in Section 9.02 or as otherwise agreed with such Borrower in
connection with such issuance. In the event and to the extent that the
provisions of any Letter of Credit Agreement shall conflict with this Agreement,
the provisions of this Agreement shall govern. For avoidance of doubt, but
without limitation of the generality of the foregoing, provisions relating to
security interests, reimbursement or other payment obligations, interest or
events of default shall be deemed to be in conflict with this Agreement
(b) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing Available Amount thereof) and without
any further action on the part of the applicable Issuing Bank or the Lenders,
such Issuing Bank hereby grants to each Lender, and each Lender hereby acquires
from such Issuing Bank, a participation in such Letter of Credit equal to such
Lender's Ratable Share of the Available Amount of such Letter of Credit. Each
Borrower hereby agrees to each such participation. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and unconditionally
agrees to pay to the Agent, for the account of such Issuing Bank, such Lender's
Ratable Share of each drawing made under a Letter of Credit funded by such
Issuing Bank and not reimbursed by the applicable Borrower on the date made, or
of any reimbursement payment required to be refunded to such Borrower for any
reason, which amount will be advanced, and deemed to be an Advance to such
Borrower hereunder, regardless of the satisfaction of the conditions set forth
in Section 3.02. Each Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit in accordance with the terms of this Agreement or the
occurrence and continuance of a Default or reduction or termination of the
Revolving Credit Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Lender further
acknowledges and agrees that its participation in each Letter of Credit will be
automatically adjusted to reflect such Lender's Ratable Share of the Available
Amount of such Letter of Credit at each time such Lender's Revolving Credit
Commitment is amended pursuant to a Commitment Increase in accordance with
Section 2.18, an assignment in accordance with Section 9.07 or otherwise
pursuant to this Agreement.
(c) Drawing and Reimbursement. The payment by an Issuing Bank of a
draft drawn under any Letter of Credit which is not reimbursed by the applicable
Borrower on the date made (the Borrowers having no obligation to reimburse such
Issuing Bank on the date of such payment, except to the extent, if any, that the
sum
14
of the amount of such drawing plus the outstanding principal amount of all
Advances, plus the remaining Available Amount of all outstanding Letters of
Credit, would exceed the aggregate Revolving Credit Commitments at such date)
shall constitute for all purposes of this Agreement the making by any such
Issuing Bank of an Advance, which, in the case of a Letter of Credit denominated
in Dollars, shall be a Base Rate Advance, in the amount of such draft, or, in
the case of a Letter of Credit denominated in a Committed Currency, shall be a
Base Rate Advance in the Equivalent amount of Dollars on the date such draft is
paid, without regard to whether the making of such an Advance would exceed such
Issuing Bank's Unused Commitment. Each Issuing Bank shall give prompt notice of
each drawing under any Letter of Credit issued by it to the applicable Borrower
and the Agent. Upon written demand by such Issuing Bank, with a copy of such
demand to the Agent and the applicable Borrower, each Lender shall pay to the
Agent such Lender's Ratable Share of such outstanding Advance pursuant to
Section 2.03(b). Each Lender acknowledges and agrees that its obligation to make
Advances pursuant to this paragraph in respect of Letters of Credit is absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of the
Revolving Credit Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Promptly after
receipt thereof, the Agent shall transfer such funds to such Issuing Bank. Each
Lender agrees to fund its Ratable Share of an outstanding Advance on (i) the
Business Day on which demand therefor is made by such Issuing Bank, provided
that notice of such demand is given not later than 11:00 A.M. (New York City
time) on such Business Day, or (ii) the first Business Day next succeeding such
demand if notice of such demand is given after such time. If and to the extent
that any Lender shall not have so made the amount of such Advance available to
the Agent, such Lender agrees to pay to the Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand by
any such Issuing Bank until the date such amount is paid to the Agent, at the
Federal Funds Rate for its account or the account of such Issuing Bank, as
applicable. If such Lender shall pay to the Agent such amount for the account of
any such Issuing Bank on any Business Day, such amount so paid in respect of
principal shall constitute an Advance made by such Lender on such Business Day
for purposes of this Agreement, and the outstanding principal amount of the
Advance made by such Issuing Bank shall be reduced by such amount on such
Business Day.
(d) Letter of Credit Reports. Each Issuing Bank shall furnish (A) to
the Agent on the first Business Day of each month a written report summarizing
issuance and expiration dates of Letters of Credit issued by such Issuing Bank
during the preceding month and drawings during such month under all Letters of
Credit and (B) to the Agent on the first Business Day of each calendar quarter a
written report setting forth the average daily aggregate Available Amount during
the preceding calendar quarter of all Letters of Credit issued by such Issuing
Bank. The Agent shall provide prompt notice to the Lenders of the reports
delivered pursuant to this subsection (d).
(e) Failure to Make Advances. The failure of any Lender to make the
Advance to be made by it on the date specified in Section 2.03(c) shall not
relieve any other Lender of its obligation hereunder to make its Advance on such
date, but no Lender shall be responsible for the failure of any other Lender to
make the Advance to be made by such other Lender on such date.
SECTION 2.04. Fees. (a) Facility Fee. The Borrowers agree to pay to
the Agent for the account of each Lender a facility fee on the aggregate amount
of such Lender's Revolving Credit Commitment from the Effective Date in the case
of each Initial Lender and from the effective date specified in the Assumption
Agreement or in the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender until the Termination Date at a rate per
annum equal to the Applicable Percentage in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and December,
commencing June 30, 2004, and on the Termination Date.
(b) Letter of Credit Commissions. (i) Each Borrower shall pay to the
Agent for the account of each Lender a commission on such Lender's Ratable Share
of the average daily aggregate Available Amount of all Letters of Credit issued
at the request of such Borrower and outstanding from time to time at a rate per
annum equal to the Applicable Margin for Eurocurrency Rate Advances in effect
from time to time plus the Applicable Utilization Fee, if any, during such
calendar quarter, payable in arrears quarterly on the last day of each March,
June, September and December, commencing with the quarter ended June 30, 2004,
and on the Termination Date; provided that the Applicable Margin shall be 2%
above the Applicable Margin in effect upon the occurrence and during the
continuation of an Event of Default if the Borrowers are required to pay default
interest pursuant to Section 2.07(b).
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(ii) Each Borrower shall pay to each Issuing Bank, for its own
account, such fronting fees and such other commissions, issuance fees,
transfer fees and other fees and charges in connection with the issuance
or administration of each Letter of Credit as such Borrower and such
Issuing Bank shall agree.
(c) Agent's Fees. The Borrowers shall pay to the Agent for its own
account such fees as may from time to time be agreed between the Guarantor and
the Agent.
SECTION 2.05. Optional Termination or Reduction of the Commitments.
The Borrowers shall have the right, upon at least five Business Days' notice to
the Agent, to terminate in whole or permanently reduce ratably in part the
Unused Revolving Credit Commitments or the Unissued Letter of Credit Commitments
of the Lenders, provided that each partial reduction shall be in the aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof.
SECTION 2.06. Repayment of Advances and Letter of Credit Drawings.
(a) The Borrowers shall repay to the Agent for the ratable account of the
Lenders on the Termination Date the aggregate principal amount of the Advances
then outstanding.
(b) The obligations of the applicable Borrower under any Letter of
Credit Agreement and any other agreement or instrument relating to any Letter of
Credit (subject to Section 2.03(a)) shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement, such
Letter of Credit Agreement and such other agreement or instrument under all
circumstances, including, without limitation, the following circumstances (it
being understood that any such payment by such Borrower is without prejudice to,
and does not constitute a waiver of, any rights such Borrower might have or
might acquire as a result of the payment by any Lender of any draft or the
reimbursement by such Borrower thereof):
(i) any lack of validity or enforceability of this Agreement, any
Note, any Letter of Credit Agreement, any Letter of Credit or any other
agreement or instrument relating thereto (all of the foregoing being,
collectively, the "L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of such Borrower in
respect of any L/C Related Document or any other amendment or waiver of or
any consent to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other right
that such Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), any Issuing Bank, any
Agent, any Lender or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents or any unrelated
transaction;
(iv) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any
guarantee, for all or any of the obligations of such Borrower in respect
of the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, such Borrower or a guarantor.
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SECTION 2.07. Interest on Advances. (a) Scheduled Interest. The
Borrowers shall pay interest on the unpaid principal amount of each Advance
owing to each Lender from the date of such Advance until such principal amount
shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the sum of (x)
the Base Rate in effect from time to time plus (y) the Applicable Margin
in effect from time to time plus (z) the Applicable Utilization Fee, if
any, in effect from time to time, payable in arrears quarterly on the last
day of each March, June, September and December during such periods and on
the date such Base Rate Advance shall be Converted or paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such Advance
is a Eurocurrency Rate Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the sum of (x) the Eurocurrency
Rate for such Interest Period for such Advance plus (y) the Applicable
Margin in effect from time to time plus (z) the Applicable Utilization
Fee, if any, in effect from time to time, payable in arrears on the last
day of such Interest Period and, if such Interest Period has a duration of
more than three months, on each day that occurs during such Interest
Period every three months from the first day of such Interest Period and
on the date such 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 Agent may, and upon the
request of the Required Lenders shall, require the Borrowers to pay interest
("Default Interest") on (i) the unpaid principal amount of each Advance owing to
each Lender, payable in arrears on the dates referred to in clause (a)(i) or
(a)(ii) above, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on such Advance pursuant to clause (a)(i) or
(a)(ii) above and (ii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable hereunder that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to clause (a)(i) above;
provided, however, that following acceleration of the Advances pursuant to
Section 6.01, Default Interest shall accrue and be payable hereunder whether or
not previously required by the Agent.
SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Agent timely information for the purpose of determining
each Eurocurrency Rate. If any one or more of the Reference Banks shall not
furnish such timely information to the Agent for the purpose of determining any
such interest rate, the Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks. The Agent shall
give prompt notice to the applicable Borrower and the Lenders of the applicable
interest rate determined by the Agent for purposes of Section 2.07(a)(i) or
(ii), and the rate, if any, furnished by each Reference Bank for the purpose of
determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the Required
Lenders notify the Agent that (i) they are unable to obtain matching deposits in
the London inter-bank market at or about 11:00 A.M. (London time) on the second
Business Day before the making of a Borrowing in sufficient amounts to fund
their respective Advances as a part of such Borrowing during its 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, the Agent shall forthwith so notify the applicable Borrower and the
Lenders, whereupon (A) such Borrower will, on the last day of the then existing
Interest Period therefor, (1) if such Eurocurrency Rate Advances are denominated
in Dollars, either (x) prepay such Advances or (y) Convert such Advances into
Base Rate Advances and (2) if such Eurocurrency Rate Advances are denominated in
any Committed Currency, either (x) prepay such Advances or (y) exchange such
Advances into an Equivalent amount of Dollars and Convert such Advances into
Base Rate Advances and (B) the obligation of the Lenders to make, or to Convert
Advances into, Eurocurrency Rate Advances in the affected currency shall be
suspended until the Agent shall notify the Borrowers and the Lenders that the
circumstances causing such suspension no longer exist; provided that, if the
circumstances set forth in clause (ii) above are applicable, the applicable
Borrower may elect, by notice to the Agent and the Lenders, to continue such
Advances in such Committed Currency for Interest Periods of not longer than one
month, which Advances shall thereafter bear interest at a rate per annum equal
to the Applicable Margin plus the Applicable Utilization Fee, if any, plus, for
each
17
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 Interest
Period to the Agent and the applicable 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 any Borrower shall fail to select the duration of any
Interest Period in accordance with the provisions contained in the definition of
"Interest Period" in Section 1.01 for any Eurocurrency Rate Advances made to it,
the Agent will forthwith so notify such Borrower and the Lenders and such
Advances will automatically, on the last day of the then existing Interest
Period therefor, (i) if such Eurocurrency Rate Advances are denominated in
Dollars, Convert into Base Rate Advances and (ii) if such Eurocurrency Rate
Advances are denominated in a Committed Currency, be exchanged for an Equivalent
amount of Dollars and Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than the Borrowing Minimum, such Advances
shall automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default under Section 6.01(a), (i) each Eurocurrency Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
(A) if such Eurocurrency Rate Advances are denominated in Dollars, be Converted
into Base Rate Advances and (B) if such Eurocurrency Rate Advances are
denominated in any Committed Currency, be exchanged for an Equivalent amount of
Dollars and be Converted into Base Rate Advances and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Eurocurrency Rate Advances shall
be suspended; provided that the applicable Borrower may elect, by notice to the
Agent and the Lenders within one Business Day of such Event of Default, to
continue such Advances in such Committed Currency, whereupon the Agent may
require that each Interest Period relating to such Eurocurrency Rate Advances
shall bear interest at the Overnight Eurocurrency Rate for a period of three
Business Days and thereafter, each such Interest Period shall have a duration of
not longer than one month. "Overnight Eurocurrency Rate" means the rate per
annum applicable to an overnight period beginning on one Business Day and ending
on the next Business Day equal to the sum of 1%, the Applicable Interest Rate
Margin and the average, rounded upward to the nearest whole multiple of 1/16 of
1%, if such average is not such a multiple, of the respective rates per annum
quoted by each Reference Bank to the Agent on request as the rate at which it is
offering overnight deposits in the relevant currency in amounts comparable to
such Reference Bank's Eurocurrency Rate Advances.
(f) If Telerate Markets Page 3750 is unavailable and fewer than two
Reference Banks furnish timely information to the Agent for determining the
Eurocurrency Rate for any Eurocurrency Rate Advances,
(i) the Agent shall forthwith notify the Borrowers and the Lenders
that the interest rate cannot be determined for such Eurocurrency Rate
Advances,
(ii) with respect to Eurocurrency Rate Advances, each such Advance
will automatically, on the last day of the then existing Interest Period
therefor, (A) if such Eurocurrency Rate Advance is denominated in Dollars,
Convert into a Base Rate Advance and (B) if such Eurocurrency Rate Advance
is denominated in any Committed Currency, be prepaid by the applicable
Borrower or be automatically exchanged for an Equivalent amount of Dollars
and be 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 Advances into Eurocurrency Rate Advances shall be
suspended until the Agent shall notify the Borrowers and the Lenders that
the circumstances causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Advances. Each Borrower may on
any Business Day, upon notice given to the Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.08 and 2.12, Convert all
or any portion of the Advances made to such Borrower denominated in Dollars of
one Type comprising the same
18
Borrowing into Advances denominated in Dollars of the other Type; provided,
however, that any Conversion of Eurocurrency Rate Advances into Base Rate
Advances shall be made only on the last day of an Interest Period for such
Eurocurrency Rate Advances, any Conversion of Base Rate Advances into
Eurocurrency Rate Advances shall be in an amount not less than the minimum
amount specified in Section 2.02(b) and no Conversion of any Advances shall
result in more separate Borrowings than permitted under Section 2.02(b). Each
such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Dollar denominated Advances to
be Converted, and (iii) if such Conversion is into Eurocurrency Rate Advances,
the duration of the initial Interest Period for each such Advance. Each notice
of Conversion shall be irrevocable and binding on the applicable Borrower.
SECTION 2.10. Prepayments of Advances. (a) Optional. Each Borrower
may, upon notice at least two Business Days' prior to the date of such
prepayment, in the case of Eurocurrency Rate Advances, and not later than 11:00
A.M. (New York City time) on the date of such prepayment, in the case of Base
Rate Advances, to the Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Borrower giving such
notice shall, prepay the outstanding principal amount of the Advances comprising
part of the same Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount of not less than the Borrowing Minimum or an integral multiple
of the Borrowing Multiple in excess thereof and (y) in the event of any such
prepayment of a Eurocurrency Rate Advance, such Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 9.04(c).
(b) Mandatory. (i) If, on any date, the Agent notifies the Borrowers
that, on any interest payment date, the sum of (A) the aggregate principal
amount of all Advances denominated in Dollars then outstanding plus (B) the
aggregate Available Amount of all Letters of Credit denominated in Dollars then
outstanding plus (C) the Equivalent in Dollars (determined on the third Business
Day prior to such interest payment date) of the aggregate principal amount of
all Advances denominated in Committed Currencies then outstanding plus (D) the
Equivalent in Dollars (determined on the third Business Day prior to such
interest payment date) of the aggregate Available Amount of all Letters of
Credit denominated in Committed Currencies then outstanding exceeds 103% of the
aggregate Revolving Credit Commitments of the Lenders on such date, the
Borrowers shall, as soon as practicable and in any event within two Business
Days after receipt of such notice, subject to the proviso to this sentence set
forth below, prepay the outstanding principal amount of any Advances owing by
the Borrowers in an aggregate amount sufficient to reduce such sum to an amount
not to exceed 100% of the aggregate Revolving Credit Commitments of the Lenders
on such date together with any interest accrued to the date of such prepayment
on the aggregate principal amount of Advances prepaid; provided that if the
aggregate principal amount of Base Rate Advances outstanding at the time of such
required prepayment is less than the amount of such required prepayment, the
portion of such required prepayment in excess of the aggregate principal amount
of Base Rate Advances then outstanding shall be deferred until the next
succeeding last day of an Interest Period of outstanding Eurocurrency Rate
Advances in an aggregate amount equal to the excess of such required prepayment.
The Agent shall give prompt notice of any prepayment required under this Section
2.10(b) to the Borrowers and the Lenders, and shall provide prompt notice to the
Borrowers of any such notice of required prepayment received by it from any
Lender.
(ii) Each prepayment made pursuant to this Section 2.10(b) shall be
made together with any interest accrued to the date of such prepayment on the
principal amounts prepaid and, in the case of any prepayment of a Eurocurrency
Rate Advance on a date other than the last day of an Interest Period or at its
maturity, any additional amounts which the applicable Borrower shall be
obligated to reimburse to the Lenders in respect thereof pursuant to Section
9.04(c). The Agent shall give prompt notice of any prepayment required under
this Section 2.10(b) to the Borrowers and the Lenders.
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation after the date hereof, or (ii) the compliance with any guideline or
request issued after the date hereof from any central bank or other governmental
authority including, without limitation, any agency of the European Union or
similar monetary or multinational authority (whether or not having the force of
law), there shall be any increase in the cost to any Lender of agreeing to make
or making, funding or maintaining Eurocurrency Rate Advances or agreeing to
issue or of issuing or maintaining or participating in Letters
19
of Credit (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 Borrowers shall from time to time,
upon demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such increased cost; provided, however, that before making any
such demand, each Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would avoid the
need for, or reduce the amount of, such increased cost and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
A certificate as to the amount of such increased cost, submitted to the
Borrowers and the Agent by such Lender, shall be conclusive and binding for all
purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request taking effect or issued after the date
hereof from any central bank or other governmental authority (whether or not
having the force of law) affects or would affect the amount of capital required
or expected to be maintained by such Lender or any corporation controlling such
Lender and that the amount of such capital is increased by or based upon the
existence of such Lender's commitment to lend or to issue or participate in
Letters of Credit hereunder and other commitments of this type, then, upon
demand by such Lender (with a copy of such demand to the Agent), the Borrowers
shall pay to the Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation in the light of such circumstances, to the extent
that such Lender reasonably determines such increase in capital to be allocable
to the existence of such Lender's commitment to lend hereunder. A certificate as
to such amounts submitted to the Borrowers and the Agent by such Lender shall be
conclusive and binding for all purposes, absent manifest error.
(c) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Borrowers shall
not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than six months prior to the date
that such Lender notifies the Borrowers of the circumstances giving rise to such
increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided further that, if the circumstances giving rise
to such increased costs or reductions cause such increased costs or reductions
to be retroactive, then the six-month period referred to above shall be extended
to include the period of retroactive effect thereof.
SECTION 2.12. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Agent that the introduction of or
any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurocurrency Lending Office to perform its
obligations hereunder to make Eurocurrency Rate Advances in Dollars or any
Committed Currency or to fund or maintain Eurocurrency Rate Advances in Dollars
or any Committed Currency hereunder, (a) (i) if such Eurocurrency Rate Advance
is denominated in Dollars, be Converted into a Base Rate Advance and (ii) if
such Eurocurrency Rate Advance is denominated in any Committed Currency, be
exchanged into an Equivalent amount of Dollars and be Converted into a Base Rate
Advance and (b) the obligation of the Lenders to make Eurocurrency Rate Advances
in the affected currency or to Convert Advances into Eurocurrency Rate Advances
shall be suspended until the Agent shall notify the Borrowers and the Lenders
that the circumstances causing such suspension no longer exist; provided,
however, that 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 such Eurocurrency Rate Advances
or to continue to fund or maintain such Eurocurrency Rate Advances and would
not, in the judgment of such Lender, be otherwise disadvantageous to such
Lender.
SECTION 2.13. Payments and Computations. (a) The Borrowers shall
make each payment hereunder (except with respect to principal of, interest on,
and other amounts relating to, Advances denominated in a Committed Currency),
irrespective of any right of counterclaim or set-off, not later than 11:00 A.M.
(New York City time) on the day when due in Dollars to the Agent at the
applicable Agent's Account in same day funds. The Borrowers shall make each
payment hereunder with respect to principal of, interest on, and other amounts
relating
20
to, Advances denominated in a Committed Currency, irrespective of any right of
counterclaim or set-off, not later than 11:00 A.M. (at the Payment Office for
such Committed Currency) on the day when due in such Committed Currency to the
Agent, by deposit of such funds to the applicable Agent's Account in same day
funds. The Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal, interest, fees or commissions ratably
(other than amounts payable pursuant to Section 2.11, 2.14 or 9.04(c)) to the
Lenders for the account of their respective Applicable Lending Offices, and like
funds relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon any Assuming Lender
becoming a Lender hereunder as a result of a Commitment Increase pursuant to
Section 2.18, and upon the Agent's receipt of such Lender's Assumption Agreement
and recording of the information contained therein in the Register, from and
after the applicable Increase Date, the Agent shall make all payments hereunder
and under any Notes issued in connection therewith in respect of the interest
assumed thereby to the Assuming Lender. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in the Register
pursuant to Section 9.07(c), from and after the effective date specified in such
Assignment and Acceptance, the Agent shall make all payments hereunder and under
any Notes in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) Each Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under the
Note held by such Lender, to charge from time to time against any or all of such
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall be
made by the Agent on the basis of a year of 365 or 366 days, as the case may be,
all computations of interest based on the Eurocurrency Rate or the Federal Funds
Rate and of fees and Letter of Credit commissions shall be made by the Agent on
the basis of a year of 360 days (or, in each case of Advances denominated in
Committed Currencies where market practice differs, in accordance with market
practice), 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,
fees or commissions are payable. Each determination by the Agent of an interest
rate hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest, fee or commission,
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 next
preceding Business Day.
(e) Unless the Agent shall have received notice from the applicable
Borrower prior to the date on which any payment is due to the Lenders hereunder
that such Borrower will not make such payment in full, the Agent may assume that
such Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent the applicable Borrower shall not have so made such payment in
full to the Agent, each Lender shall repay to the Agent forthwith on demand such
amount distributed to such Lender together with interest thereon, for each day
from the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Agent, at (i) the Federal Funds Rate in the
case of Advances denominated in Dollars or (ii) the cost of funds incurred by
the Agent in respect of such amount in the case of Advances denominated in
Committed Currencies.
(f) To the extent that the Agent receives funds for application to
the amounts owing by any Borrower under or in respect of this Agreement or any
Note in currencies other than the currency or currencies required to enable the
Agent to distribute funds to the Lenders in accordance with the terms of this
Section 2.13, the Agent shall be entitled to convert or exchange such funds into
Dollars or into a Committed Currency, to the extent necessary to enable the
Agent to distribute such funds in accordance with the terms of this Section
2.13; provided that each Borrower and each of the Lenders hereby agree that the
Agent shall not be liable or responsible for any loss, cost or expense suffered
by such Borrower or such Lender as a result of any conversion or exchange of
currencies affected pursuant to this Section 2.13(f) or as a result of the
failure of the Agent to effect any such
21
conversion or exchange; and provided further that the Borrowers agree to
indemnify the Agent and each Lender, and hold the Agent and each Lender
harmless, for any and all losses, costs and expenses incurred by the Agent or
any Lender for any conversion or exchange of currencies (or the failure to
convert or exchange any currencies) in accordance with this Section 2.13(f).
SECTION 2.14. Taxes. (a) Any and all payments by any Loan Party to
or for the account of any Lender or the Agent hereunder or under the Notes or
any other documents to be delivered hereunder shall be made, in accordance with
Section 2.13 or the applicable provisions of such other documents, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Agent, taxes imposed on
its overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction under the laws of which such Lender or the Agent (as
the case may be) is organized or any political subdivision thereof and, in the
case of each Lender, taxes imposed on its overall net income, and franchise
taxes imposed on it in lieu of net income taxes, by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision thereof and
excluding such taxes imposed by the United States or the United Kingdom that are
payable as of the date such Lender or the Agent became a party to this Agreement
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If any Loan Party shall be required by law
to deduct any Taxes from or in respect of any sum payable hereunder or under any
Note or any other documents to be delivered hereunder to any Lender or the
Agent, (i) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.14) such Lender or the Agent (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Loan Party shall make such deductions and (iii)
such Loan Party shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes or any
other documents to be delivered hereunder or from the execution, delivery or
registration of, performing under, or otherwise with respect to, this Agreement
or the Notes or any other documents to be delivered hereunder (hereinafter
referred to as "Other Taxes").
(c) The Borrowers shall indemnify each Lender and the Agent for and
hold it harmless against the full amount of Taxes or Other Taxes (including,
without limitation, taxes of any kind imposed or asserted by any jurisdiction on
amounts payable under this Section 2.14) imposed on or paid by such Lender or
the Agent (as the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto. This indemnification
shall be made within 30 days from the date such Lender or the Agent (as the case
may be) makes written demand therefor.
(d) Within 45 days after the date of any payment of Taxes, the
applicable Loan Party shall furnish to the Agent, at its address referred to in
Section 9.02, the original or a certified copy of a receipt evidencing such
payment to the extent such a receipt is issued therefor, or other written proof
of payment thereof that is reasonably satisfactory to the Agent. In the case of
any payment hereunder or under the Notes or any other documents to be delivered
hereunder by or on behalf of any Loan Party (other than OFP) through an account
or branch outside the United States or by or on behalf of any Loan Party (other
than OFP) by a payor that is not a United States person, if such Loan Party
determines that no Taxes are payable in respect thereof, such Loan Party shall
furnish, or shall cause such payor to furnish, to the Agent, at such address, an
opinion of counsel acceptable to the Agent stating that such payment is exempt
from Taxes. For purposes of this subsection (d) and subsection (e), the terms
"United States" and "United States person" shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assumption
Agreement or the Assignment and Acceptance pursuant to which it becomes a Lender
in the case of each other Lender, and from time to time thereafter as reasonably
requested in writing by OFI and OCI (but only so long as such Lender remains
lawfully able to do so), shall provide each of the Agent OFI and OCI with two
original Internal Revenue Service forms W-8BEN or W-8ECI, as appropriate, or any
successor or other form prescribed by
22
the Internal Revenue Service, certifying that such Lender is exempt from or
entitled to a reduced rate of United States withholding tax on payments made by
OFI and OCI pursuant to this Agreement or the Notes. If the form provided by a
Lender at the time such Lender first becomes a party to this Agreement indicates
a United States interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from Taxes unless and until such
Lender provides the appropriate forms certifying that a lesser rate applies,
whereupon withholding tax at such lesser rate only shall be considered excluded
from Taxes for periods governed by such form; provided, however, that, if at the
date of the Assignment and Acceptance pursuant to which a Lender assignee
becomes a party to this Agreement, the Lender assignor was entitled to payments
under subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender assignee on such date. If any form or
document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form W-8BEN
or W-8ECI, that the Lender reasonably considers to be confidential, the Lender
shall give notice thereof to OFI and OCI and shall not be obligated to include
in such form or document such confidential information.
(f) For any period with respect to which a Lender has failed to
provide OFI and OCI with the appropriate form, certificate or other document
described in Section 2.14(e) (other than if such failure is due to a change in
law, or in the interpretation or application thereof, occurring subsequent to
the date on which a form, certificate or other document originally was required
to be provided, or if such form, certificate or other document otherwise is not
required under subsection (e) above), such Lender shall not be entitled to
indemnification under Section 2.14(a) or (c) with respect to Taxes imposed by
the United States by reason of such failure; provided, however, that should a
Lender become subject to Taxes because of its failure to deliver a form,
certificate or other document required hereunder, the Borrowers shall take such
steps as the Lender shall reasonably request to assist the Lender to recover
such Taxes.
(g) In respect of Advances to OFP, each Lender shall designate an
Applicable Lending Office that is beneficially entitled to interest under such
Advances and that, on the date of this Agreement or (in the case of any Person
that becomes a Lender hereunder by means of an assignment) on the date such
Lender becomes a party hereto is either (i) within the charge to United Kingdom
corporation tax in respect of interest in respect of an advance by a person that
was a bank (for the purposes of Section 349 Income and Corporation Taxes Act
1988) at the time the advance was made; or (ii) resident in a country with which
the United Kingdom has a double taxation agreement which makes provision for
full exemption from United Kingdom taxation on interest payable by OFP pursuant
to this Agreement and does not carry on business in the United Kingdom through a
permanent establishment with which the payment is effectively connected (each
such bank which is so resident being hereinafter in this Section 2.14 referred
to as a "Treaty Lender"); or (iii) a company resident in the United Kingdom, or
a partnership each member of which is a company resident in the United Kingdom
for United Kingdom tax purposes; or (iv) a company not so resident in the United
Kingdom which carries on a trade in the United Kingdom through a branch or
agency and which is required to bring into account interest payable to it by OFP
pursuant to this Agreement in computing its chargeable profits for the purposes
of Section 11(2) of the Income and Corporation Taxes ▇▇▇ ▇▇▇▇. If any Lender
does not or ceases to comply with clause (i), (ii), (iii) or (iv) above other
than by reason of any change after the date of this Agreement in (or in the
interpretation, administration or application of) any law or double taxation
agreement or any published practice or concession of any relevant taxing
authority, the Borrowers shall not be required to compensate such Lender under
Section 2.14(a) or 2.14(c) for the amount of Taxes imposed by the United Kingdom
in consequence. Any Lender to whom clause (ii) above is relevant shall cooperate
with OFP in promptly completing any procedural formalities necessary for OFP to
obtain authorization to make interest payments without deduction for UK income
tax.
(h) Each Treaty Lender irrevocably appoints the Agent to act as
syndicate manager under, and authorizes the Agent to operate, and take any
action necessary or desirable under, the PTR Scheme in connection with any
Borrowing hereunder. Each Treaty Lender shall cooperate with the Agent in
completing any procedural formalities necessary under the PTR Scheme, and shall
promptly supply to the Agent such information as the Agent may request in
connection with the operation of the PTR Scheme. Each Treaty Lender without
limiting the liability of any Borrower under this Agreement, shall, within five
Business Days of demand, indemnify the Agent for any liability or loss incurred
by the Agent as a result of the Agent acting as syndicate manager under the
23
PTR Scheme in connection with the Treaty Lender's participation in any Borrowing
(except to the extent that the liability or loss arises directly from the
Agent's gross negligence or willful misconduct). Each Treaty Lender shall,
within five Business Days of demand, indemnify each Borrower for any Tax which
such Borrower becomes liable to pay in respect of any payments made to such
Treaty Lender arising as a result of any incorrect information supplied by such
Treaty Lender which results in a provisional authority issued by the UK Inland
Revenue under the PTR Scheme being withdrawn. Each Borrower acknowledges that it
is fully aware of its contingent obligations under the PTR Scheme and shall (i)
promptly inform the Agent of all actions required to be performed by the Agent
under the PTR Scheme, (ii) promptly supply to the Agent such information as the
Agent may request in connection with the operation of the PTR Scheme; and (iii)
act in accordance with any provisional notice issued by the UK Inland Revenue
under the PTR Scheme. The Agent agrees to provide, as soon as reasonably
practicable, a copy of any provisional authority issued to it under the PTR
Scheme in connection with any Borrowing to those Borrowers specified in such
provisional authority. Each of the Borrowers, the Treaty Lenders and the Agent
acknowledges that the Agent: (i) is entitled to rely completely upon information
provided to it in connection with this clause; (ii) is not obliged to undertake
any inquiry into the accuracy of such information nor into the status of the
Treaty Lender or, as the case may be, Borrower providing such information; and
(iii) shall have no liability to any person for the accuracy of any information
it submits to the UK Inland Revenue in connection with this clause.
(i) Any Lender claiming any additional amounts payable pursuant to
this Section 2.14 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
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Advances owing to it (other than as
payment of an Advance made by an Issuing Bank pursuant to the first sentence of
Section 2.03(c), to the extent that the unreimbursed amount of such Advance
exceeds the Issuing Bank's Ratable Share of the initial amount of such Advance,
or pursuant to Section 2.11, 2.14 or 9.04(c)) in excess of its Ratable Share of
payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. Each Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.15
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of such Borrower in the amount of such
participation.
SECTION 2.16. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Advance owing
to such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder in respect
of Advances made to such Borrower. The Borrowers agree that upon notice by any
Lender to the Borrowers (with a copy of such notice to the Agent) to the effect
that a Note is required or appropriate in order for such Lender to evidence
(whether for purposes of pledge, enforcement or otherwise) the Advances owing
to, or to be made by, such Lender, the Borrowers shall promptly execute and
deliver to such Lender a Note payable to the order of such Lender in a principal
amount up to the Revolving Credit Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 9.07(d)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date and amount of
each Borrowing made hereunder, the Type of Advances comprising such Borrowing
and, if appropriate, the Interest Period applicable thereto, (ii) the terms of
each Assumption Agreement and each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due and
24
payable or to become due and payable from each Borrower to each Lender hereunder
and (iv) the amount of any sum received by the Agent from each Borrower
hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant
to subsection (b) above, and by each Lender in its account or accounts pursuant
to subsection (a) above, shall be prima facie evidence of the amount of
principal and interest due and payable or to become due and payable from each
Borrower to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender to make an
entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of any
Borrower under this Agreement.
SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall be
available (and each Borrower agrees that it shall use such proceeds) solely for
general corporate purposes of the Borrowers and their Subsidiaries, including,
without limitation, as commercial paper liquidity support and to fund
acquisitions otherwise not prohibited hereunder.
SECTION 2.18. Increase in the Aggregate Commitments. (a) The
Guarantor may, at any time but in any event not more than once in any calendar
year prior to the Termination Date, by notice to the Agent, request that the
aggregate amount of the Revolving Credit Commitments be increased by an amount
of $10,000,000 or an integral multiple thereof (each a "Commitment Increase") to
be effective as of a date that is at least 90 days prior to the scheduled
Termination Date then in effect (the "Increase Date") as specified in the
related notice to the Agent; provided, however that (i) in no event shall the
aggregate amount of the Revolving Credit Commitments at any time exceed
$2,000,000,000 and (ii) on the date of any request by the Guarantor for a
Commitment Increase and on the related Increase Date the applicable conditions
set forth in Article III shall be satisfied.
(b) The Agent shall promptly notify the Lenders of a request by the
Guarantor for a Commitment Increase, which notice shall include (i) the proposed
amount of such requested Commitment Increase, (ii) the proposed Increase Date
and (iii) the date by which Lenders wishing to participate in the Commitment
Increase must commit to an increase in the amount of their respective Revolving
Credit Commitments (the "Commitment Date"). Each Lender that is willing to
participate in such requested Commitment Increase (each an "Increasing Lender")
shall, in its sole discretion, give written notice to the Agent on or prior to
the Commitment Date of the amount by which it is willing to increase its
Revolving Credit Commitment. If the Lenders notify the Agent that they are
willing to increase the amount of their respective Revolving Credit Commitments
by an aggregate amount that exceeds the amount of the requested Commitment
Increase, the requested Commitment Increase shall be allocated among the Lenders
willing to participate therein in such amounts as are agreed between the
Guarantor and the Agent.
(c) Promptly following each Commitment Date, the Agent shall notify
the Guarantor as to the amount, if any, by which the Lenders are willing to
participate in the requested Commitment Increase. If the aggregate amount by
which the Lenders are willing to participate in any requested Commitment
Increase on any such Commitment Date is less than the requested Commitment
Increase, then the Guarantor may extend offers to one or more Eligible Assignees
to participate in any portion of the requested Commitment Increase that has not
been committed to by the Lenders as of the applicable Commitment Date; provided,
however, that the Revolving Credit Commitment of each such Eligible Assignee
shall be in an amount of $10,000,000 or an integral multiple of $1,000,000 in
excess thereof.
(d) On each Increase Date, each Eligible Assignee that accepts an
offer to participate in a requested Commitment Increase in accordance with
Section 2.18(b) (each such Eligible Assignee, an "Assuming Lender") shall become
a Lender party to this Agreement as of such Increase Date and the Revolving
Credit 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 2.18(b)) as of such
Increase Date; provided, however, that the Agent shall have received on or
before such Increase Date the following, each dated such date:
25
(i) (A) certified copies of resolutions of the Board of Directors of
each Loan Party or the Executive Committee of such Board approving the
Commitment Increase and (B) an opinion of counsel for the Loan Parties
(which may be in-house counsel), in substantially the form of Exhibits D-1
and D-2 hereto;
(ii) an assumption agreement from each Assuming Lender, if any, in
form and substance satisfactory to the Guarantor and the Agent (each an
"Assumption Agreement"), duly executed by such Eligible Assignee, the
Agent and the Guarantor; and
(iii) confirmation from each Increasing Lender of the increase in
the amount of its Commitment in a writing satisfactory to the Guarantor
and the Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.18(d), the Agent shall notify
the Lenders (including, without limitation, each Assuming Lender) and the Loan
Parties, on or before 1:00 P.M. (New York City time), by telecopier, of the
occurrence of the Commitment Increase to be effected on such Increase Date and
shall record in the Register the relevant information with respect to each
Increasing Lender and each Assuming Lender on such date.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 2003.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Guarantor or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i)
could be reasonably likely to have a Material Adverse Effect other than
the matters described on Schedule 3.01(b) hereto (the "Disclosed
Litigation") or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or the consummation of the
transactions contemplated hereby, and there shall have been no adverse
change in the status, or financial effect on the Guarantor or any of its
Subsidiaries, of the Disclosed Litigation from that described on Schedule
3.01(b) hereto.
(c) Nothing shall have come to the attention of the Lenders during
the course of their due diligence investigation to lead them to believe
that the Information Memorandum was or has become misleading, incorrect or
incomplete in any material respect; without limiting the generality of the
foregoing, the Lenders shall have been given such access to the
management, records, books of account, contracts and properties of the
Guarantor and its Subsidiaries as they shall have requested.
(d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are not
acceptable to the Lenders) and shall remain in effect, and no law or
regulation shall be applicable in the reasonable judgment of the Lenders
that restrains, prevents or imposes materially adverse conditions upon the
transactions contemplated hereby.
(e) The Borrowers shall have notified each Lender and the Agent in
writing as to the proposed Effective Date.
(f) The Borrowers shall have paid all accrued fees and expenses of
the Agent and the Lenders (including the accrued fees and expenses of
counsel to the Agent).
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(g) On the Effective Date, the following statements shall be true
and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Guarantor, dated
the Effective Date, stating that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes
a Default.
(h) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance satisfactory to
the Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders to the extent
requested by any Lender pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the Board of
Directors of each Loan Party approving this Agreement and the Notes
to which it is a party, and of all documents evidencing other
necessary corporate action and governmental approvals, if any, with
respect to this Agreement and the Notes to which it is a party.
(iii) A certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying the names and true signatures of the
officers of such Loan Party authorized to sign this Agreement and
the Notes to which it is a party and the other documents to be
delivered by it hereunder.
(iv) A favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, New York
counsel for the Loan Parties, and MacFarlanes, English counsel for
OFP, substantially in the form of Exhibits D-1 and D-2 hereto,
respectively, and as to such other matters as any Lender through the
Agent may reasonably request.
(v) A favorable opinion of Shearman & Sterling LLP, counsel
for the Agent, in form and substance satisfactory to the Agent.
(i) The Borrowers shall have terminated the commitments and paid in
full all Debt, interest, fees and other amounts outstanding, under the
364-Day Credit Agreement dated as of November 13, 2003 among the
Borrowers, the lenders parties thereto and Citibank, as agent, and each of
the Lenders that is a party to such credit agreement hereby waives, upon
the execution of this Agreement, any requirement of prior notice relating
to the termination of the commitments thereunder.
SECTION 3.02. Conditions Precedent to Each Borrowing, Each Issuance
and Each Commitment Increase. The obligation of each Lender to make an Advance
(other than an Advance made by any Issuing Bank or any Lender pursuant to
Section 2.03(c)) on the occasion of each Borrowing, the obligation of each
Issuing Bank to issue a Letter of Credit and each Commitment Increase shall be
subject to the conditions precedent that the Effective Date shall have occurred
and on the date of such Borrowing, such issuance or such Increase Date (a) the
following statements shall be true (and each of the giving of the applicable
Notice of Borrowing, Notice of Issuance, request for Commitment Increase and the
acceptance by a Borrower of the proceeds of such Borrowing shall constitute a
representation and warranty by such Borrower that on the date of such Borrowing,
such issuance or such Increase Date such statements are true):
(i) the representations and warranties contained in Section 4.01
(except, in the case of a Borrowing or issuance, the representations set
forth in the last sentence of subsection (e) thereof and in subsection
(f)(i) thereof) are correct on and as of such date, before and after
giving effect to such
27
Borrowing, such issuance or such Commitment Increase and to the
application of the proceeds therefrom, as though made on and as of such
date, and
(ii) no event has occurred and is continuing, or would result from
such Borrowing, such issuance or such Commitment Increase or from the
application of the proceeds therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the
Borrowers, by notice to the Lenders, designate as the proposed Effective Date,
specifying its objection thereto. The Agent shall promptly notify the Lenders of
the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Guarantor. The
Guarantor represents and warrants as follows:
(a) Each Loan Party is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization.
(b) The execution, delivery and performance by each Loan Party of
this Agreement and the Notes to be delivered by it, and the consummation
of the transactions contemplated hereby, are within the such Loan Party's
corporate powers, have been duly authorized by all necessary corporate
action, and do not contravene (i) the such Loan Party's charter or by-laws
or other organizational documents or (ii) law or any contractual
restriction binding on or affecting any Loan Party.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any
other third party is required for the due execution, delivery and
performance by the any Loan Party of this Agreement or the Notes to be
delivered by it.
(d) This Agreement has been, and each of the Notes to be delivered
by it when delivered hereunder will have been, duly executed and delivered
by each Loan Party party thereto. This Agreement is, and each of the Notes
when delivered hereunder will be, the legal, valid and binding obligation
of each Loan Party party thereto enforceable against such Loan Party in
accordance with their respective terms.
(e) The Consolidated balance sheet of the Guarantor and its
Subsidiaries as at December 31, 2003, and the related Consolidated
statements of income and cash flows of the Guarantor and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of KPMG LLP,
independent public accountants, and the Consolidated balance sheet of the
Guarantor and its Subsidiaries as at March 31, 2004, and the related
Consolidated statements of income and cash flows of the Guarantor and its
Subsidiaries for the three months then ended, duly certified by the chief
financial officer of the Guarantor, copies of which have been furnished to
each Lender, fairly present, subject, in the case of said balance sheet as
at March 31, 2004, and said statements of income and cash flows for the
three months then ended, to year-end audit adjustments, the Consolidated
financial condition of the Guarantor and its Subsidiaries as at such dates
and the Consolidated results of the operations of the Guarantor and its
Subsidiaries for the periods ended on
28
such dates, all in accordance with generally accepted accounting
principles consistently applied. Since December 31, 2003, there has been
no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Guarantor,
threatened action, suit, investigation, litigation or proceeding,
including, without limitation, any Environmental Action, affecting the
Guarantor or any of its Subsidiaries before any court, governmental agency
or arbitrator that (i) could be reasonably likely to have a Material
Adverse Effect (other than the Disclosed Litigation), and there has been
no adverse change in the status, or financial effect on the Guarantor or
any of its Subsidiaries, of the Disclosed Litigation from that described
on Schedule 3.01(b) hereto or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(g) No Loan Party is engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any Advance will be used to purchase or carry
any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
(h) No Loan Party is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or
contemporaneously furnished by or on behalf of any Loan Party in writing
to any Lender (including, without limitation, all information contained in
this Agreement) for purposes of or in connection with this Agreement or
any transaction contemplated herein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of such
Loan Party in writing to any Lender will be, true and accurate in all
material respects on the date as of which such information is dated or
certified and does not or will not omit to state any fact necessary to
make such information (taken as a whole) not misleading in any material
respect at such time in light of the circumstances under which such
information was provided.
ARTICLE V
COVENANTS OF THE GUARANTOR
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Guarantor
will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
ERISA and Environmental Laws except, in each case, to the extent that
failure to comply would not reasonably be expected to have a Material
Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (ii) all lawful claims that, if
unpaid, might by law become a Lien upon its property; provided, however,
that neither the Guarantor nor any of its Subsidiaries shall be required
to pay or discharge any such tax, assessment, charge or claim that is
being contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and
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covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in
which the Guarantor or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises; provided,
however, that the Guarantor and its Subsidiaries may consummate any merger
or consolidation permitted under Section 5.02(b) and provided further that
neither the Guarantor nor any of its Subsidiaries shall be required to
preserve any right or franchise, or the existence of any Subsidiary of the
Guarantor that is not a Borrower, if the Board of Directors of the
Guarantor or the Borrower that is the corporate parent of such Subsidiary
shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Guarantor or such Borrower, as the case
may be, and that the loss thereof is not disadvantageous in any material
respect to the Guarantor, such Borrower or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to time,
permit the Agent or any of the Lenders or any agents or representatives
thereof, to examine and make copies of and abstracts from the records and
books of account of, and visit the properties of, the Guarantor and any of
its Subsidiaries, and to discuss the affairs, finances and accounts of the
Guarantor and any of its Subsidiaries with any of their officers or
directors and with their independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Guarantor and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each of its
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 Guarantor or such Subsidiary than
it would obtain in a comparable arm's-length transaction with a Person not
an Affiliate.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 50 days after
the end of each of the first three quarters of each fiscal year of
the Guarantor, the Consolidated balance sheet of the Guarantor and
its Subsidiaries as of the end of such quarter and Consolidated
statements of income and cash flows of the Guarantor and its
Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, duly certified
(subject to year-end audit adjustments) by the chief financial
officer of the Guarantor as having been prepared in accordance with
generally accepted accounting principles and certificates of the
chief financial officer of the Guarantor as to compliance with the
terms of this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Section 5.03,
provided that in the event of any change in generally accepted
accounting principles used in the preparation of such financial
statements, the Guarantor shall also provide, if necessary for the
determination of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to GAAP;
(ii) as soon as available and in any event within 95 days
after the end of each fiscal year of the Guarantor, a copy of the
annual audit report for such year for the Guarantor and its
Subsidiaries, containing the Consolidated balance sheet of the
Guarantor and its Subsidiaries as of the end of such fiscal year and
Consolidated statements of income and cash flows of the Guarantor
and its Subsidiaries for such fiscal year, in each case accompanied
by an opinion acceptable to the
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Required Lenders by KPMG LLP or other independent public accountants
acceptable to the Required Lenders and certificates of the chief
financial officer of the Guarantor as to compliance with the terms
of this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Section 5.03,
provided that in the event of any change in generally accepted
accounting principles used in the preparation of such financial
statements, the Guarantor shall also provide, if necessary for the
determination of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to GAAP;
(iii) as soon as possible and in any event within five days
after any senior officer of the Guarantor or a Borrower becomes
aware or should have become aware of the occurrence of any Default,
the occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer of the
Guarantor setting forth details of such Default and the action that
the Guarantor has taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies of
all reports that the Guarantor sends to any of its securityholders,
and copies of all reports and registration statements that the
Guarantor or any Subsidiary files with the Securities and Exchange
Commission or any national securities exchange;
(v) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Guarantor or any of its Subsidiaries of the
type described in Section 4.01(f); and
(vi) such other information respecting the Guarantor or any of
its Subsidiaries as any Lender through the Agent may from time to
time reasonably request.
Reports and financial statements required to be delivered by the
Guarantor pursuant to paragraphs (i), (ii), (iv) and (v) of this Section
5.01(i) shall be deemed to have been delivered on the date on which it
posts such reports, or reports containing such financial statements, on
its website on the Internet at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or when such reports,
or reports containing such financial statements are posted on the SEC's
website at ▇▇▇.▇▇▇.▇▇▇; provided that it shall deliver notice that such
reports and financial statements are so available and shall deliver paper
copies of the reports and financial statements referred to in paragraphs
(i), (ii), (iv) and (v) of this Section 5.01(i) to the Agent or any Lender
who requests it to deliver such paper copies until written notice to cease
delivering paper copies is given by the Agent or such Lender.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Guarantor
will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect to
any of its properties, whether now owned or hereafter acquired, or assign,
or permit any of its Subsidiaries to assign, any right to receive income,
other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real property or
equipment acquired or held by the Guarantor or any Subsidiary in the
ordinary course of business to secure the purchase price of such
property or equipment or to secure Debt incurred solely for the
purpose of financing the acquisition of such property or equipment,
or Liens existing on such property or equipment at the time of its
acquisition (other than any such Liens created in contemplation of
such acquisition that were not incurred to finance the acquisition
of such property) or extensions, renewals or replacements of any of
the foregoing for the same or a lesser amount, provided, however,
that no such Lien shall extend to or cover any properties of any
character other than the real property or equipment being acquired
and fixed improvements thereon or accessions thereto, and no such
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extension, renewal or replacement shall extend to or cover any
properties not theretofore subject to the Lien being extended,
renewed or replaced,
(iii) the Liens existing on the Effective Date and described
on Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Guarantor or any
Subsidiary of the Guarantor or becomes a Subsidiary of the
Guarantor; provided that such Liens were not created in
contemplation of such merger, consolidation or acquisition and do
not extend to any assets other than those of the Person so merged
into or consolidated with the Guarantor or such Subsidiary or
acquired by the Guarantor or such Subsidiary,
(v) Liens securing Debt permitted by Section 5.02(d)(vii),
(vi) Liens granted by Subsidiaries of the Guarantor (other
than the Borrowers) to secure Debt permitted by Section 5.02(d)(iv),
and
(vii) other Liens securing Debt, provided that the aggregate
principal amount of such secured Debt shall not exceed 15% of the
Consolidated net worth of the Guarantor and its Subsidiaries at any
time.
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, any Person, or permit any of the Borrowers to
do so.
(c) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or reporting
practices, except as required or permitted by generally accepted accounting
principles.
(d) Subsidiary Debt. Permit any of its Subsidiaries to create or
suffer to exist, any Debt other than:
(i) Debt existing on the Effective Date and described on
Schedule 5.02(d) hereto (the "Existing Debt"), and any Debt
extending the maturity of, or refunding or refinancing, in whole or
in part, the Existing Debt, provided that the principal amount of
such Existing Debt shall not be increased above the principal amount
thereof outstanding immediately prior to such extension, refunding
or refinancing plus any capitalized fees incurred in connection
therewith, and the direct and contingent obligors therefor shall not
be changed (other than to release any contingent obligor), as a
result of or in connection with such extension, refunding or
refinancing,
(ii) accrued expenses and trade payables incurred in the
ordinary course of business, and obligations under trade letters of
credit incurred in the ordinary course of business, which are to be
repaid in full not more than one year after the date on which such
Debt is originally incurred to finance the purchase of goods by such
Subsidiary,
(iii) obligations under letters of credit or surety bonds
incurred in the ordinary course of business in support of
obligations incurred in connection with leases, worker's
compensation, unemployment insurance and other social security
legislation,
(iv) Debt owed to the Guarantor or to a wholly owned
Subsidiary of the Guarantor,
(v) Debt of the Borrowers,
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(vi) other Debt of Subsidiaries of the Guarantor which are not
organized under the laws of the United States of America, a State of
the United States of America or the District of Columbia and
substantially all of whose assets and business are located or
conducted outside the United States of America,
(vii) Debt of a Person existing at the time such Person is
merged into or consolidated with the Guarantor or any Subsidiary of
the Guarantor or becomes a Subsidiary of the Guarantor; provided
that such Debt was not created in contemplation of such merger,
consolidation or acquisition, provided further that the aggregate
principal amount of the Debt referred to in this clause (iv) shall
not exceed $50,000,000 at any time outstanding,
(viii) (x) Debt consisting of any guaranty made by any
Subsidiary of the Guarantor in respect of Debt of any Loan Party,
provided that such Subsidiary shall have entered into a guaranty of
the Debt of the Guarantor under this Agreement in form and substance
reasonably satisfactory to the Required Lenders and (y) Debt
constituting guaranties of the Debt of the Guarantor under this
Agreement, and
(ix) indorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of
business.
(e) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business as
carried on at the date hereof and other reasonably related businesses or
businesses reasonably incidental thereto.
(f) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or
arrangement limiting the ability or any of its Subsidiaries to (i) pay
dividends or make any other distributions on its capital stock or any
other interest or participation in its profits owned by the Guarantor or
any of its Subsidiaries, or pay any Debt owed to the Guarantor or any of
its Subsidiaries, (ii) make loans or advances to the Guarantor or (iii)
transfer any of its properties or assets to the Guarantor, except for such
agreements or arrangements existing under or by reason of (x) applicable
law, (y) this Agreement and (z) customary provisions restricting
subletting or assignment of any lease governing a leasehold interest of a
Subsidiary of the Guarantor.
SECTION 5.03. Financial Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Guarantor
will:
(a) Leverage Ratio. Maintain a ratio of Consolidated Debt for
Borrowed Money of the Guarantor and its Subsidiaries to Consolidated
EBITDA of the Guarantor and its Subsidiaries for the four quarters most
recently ended of not greater than 3.0 to 1.
(b) Interest Coverage Ratio. Maintain a ratio of Consolidated EBITDA
of the Guarantor and its Subsidiaries for the four quarters most recently
ended to interest payable on, and amortization of debt discount in respect
of, all Debt during such period by the Guarantor and its Subsidiaries of
not less than 5.0 to 1.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
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(a) Any Borrower shall fail to pay any principal of any Advance when
the same becomes due and payable; or any Borrower shall fail to pay any
interest on any Advance or make any other payment of fees or other amounts
payable under this Agreement or any Note within three Business Days after
the same becomes due and payable; or
(b) Any representation or warranty made by the Guarantor herein or
by any Loan Party (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect when
made; or
(c) (i) The Guarantor shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d), (e), (h) or (i), 5.02
or 5.03, or (ii) any Loan Party shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its part to be
performed or observed if such failure shall remain unremedied for 30 days
after written notice thereof shall have been given to the Guarantor by the
Agent or any Lender; or
(d) The Guarantor or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal or notional amount of at least $100,000,000 in the aggregate
(but excluding Debt outstanding hereunder) of the Guarantor or such
Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Debt; or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall continue after
the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt; or any such Debt
shall be declared to be due and payable, or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each case
prior to the stated maturity thereof; or
(e) The Guarantor or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against the Guarantor or any of its Subsidiaries seeking to adjudicate it
a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee, custodian
or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain
undismissed or unstayed for a period of 60 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an
order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part of
its property) shall occur; or the Guarantor or any of its Subsidiaries
shall take any corporate action to authorize any of the actions set forth
above in this subsection (e); or
(f) Judgments or orders for the payment of money in excess of
$100,000,000 in the aggregate shall be rendered against the Guarantor or
any of its Subsidiaries and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 60 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; provided, however, that any such
judgment or order shall not be an Event of Default under this Section
6.01(f) if and for so long as (i) the amount of such judgment or order is
covered by a valid and binding policy of insurance between the defendant
and the insurer covering payment thereof and (ii) such insurer, which
shall be rated at least "A" by A.M. Best Company, has been notified of,
and has not disputed the claim made for payment of, the amount of such
judgment or order; or
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(g) (i) Any Person or two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities Exchange Act
of 1934), directly or indirectly, of Voting Stock of the Guarantor (or
other securities convertible into such Voting Stock) representing 30% or
more of the combined voting power of all Voting Stock of the Guarantor; or
(ii) during any period of up to 12 consecutive months, commencing after
the date of this Agreement, individuals who at the beginning of such
12-month period were directors of the Guarantor shall cease for any reason
to constitute a majority of the board of directors of the Guarantor; or
(iii) the Guarantor shall cease for any reason to own, directly or
indirectly, 100% of the Voting Stock of each of the Borrowers; or
(h) Any material provision of the Guaranty shall cease to be valid
and binding on or enforceable against the Guarantor, or the Guarantor
shall so state in writing; or
(i) The Guarantor or any of its ERISA Affiliates shall incur, or
shall be reasonably likely to incur liability in excess of $100,000,000 in
the aggregate as a result of one or more of the following: (i) the
occurrence of any ERISA Event; (ii) the partial or complete withdrawal of
the Guarantor or any of its ERISA Affiliates from a Multiemployer Plan; or
(iii) the reorganization or termination of a Multiemployer Plan;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrowers, declare the
obligation of each Lender to make Advances (other than Advances by an Issuing
Bank or a Lender pursuant to Section 2.03(c)) and of the Issuing Banks to issue
Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrowers, declare the Advances, all interest
thereon and all other amounts payable under this Agreement to be forthwith due
and payable, whereupon the Advances, all such interest and all such amounts
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by each Borrower; provided, however, that in the event of an actual or deemed
entry of an order for relief with respect to any Loan Party under the Federal
Bankruptcy Code, (A) the obligation of each Lender to make Advances (other than
Advances by an Issuing Bank or a Lender pursuant to Section 2.03(c)) and of the
Issuing Banks to issue Letters of Credit shall automatically be terminated and
(B) the Advances, all such interest and all such amounts shall automatically
become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by the Borrowers.
SECTION 6.02. Actions in Respect of Letters of Credit upon Default.
If any Event of Default shall have occurred and be continuing, the Agent may
with the consent, or shall at the request, of the Required Lenders, irrespective
of whether it is taking any of the actions described in Section 6.01 or
otherwise, make demand upon the Borrowers to, and forthwith upon such demand the
Borrowers will, (a) pay to the Agent for the benefit of the Lenders in same day
funds at the Agent's office designated in such demand, for deposit in the L/C
Cash Deposit Account, an amount equal to the aggregate Available Amount of all
Letters of Credit then outstanding or (b) make such other arrangements in
respect of the outstanding Letters of Credit as shall be acceptable to the
Required Lenders. If at any time the Agent determines that any funds held in the
L/C Cash Deposit Account are subject to any right or interest of any Person
other than the Agent and the Lenders or that the total amount of such funds is
less than the aggregate Available Amount of all Letters of Credit, the Borrowers
will, forthwith upon demand by the Agent, pay to the Agent, as additional funds
to be deposited and held in the L/C Cash Deposit Account, an amount equal to the
excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Cash Deposit Account that are free and clear
of any such right and interest. Upon the drawing of any Letter of Credit, to the
extent funds are on deposit in the L/C Cash Deposit Account, such funds shall be
applied to reimburse the Issuing Banks to the extent permitted by applicable
law, and if so applied, then such reimbursement shall be deemed a repayment of
the corresponding Advance in respect of such Letter of Credit. After all such
Letters of Credit shall have expired or been fully drawn upon and all other
obligations of the Borrowers hereunder and under the Notes shall have been paid
in full, the balance, if any, in such L/C Cash Deposit Account shall be promptly
returned to the Borrowers.
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ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty. The Guarantor hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due,
whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all obligations of each other Loan Party
now or hereafter existing under or in respect of the this Agreement and the
Notes (including, without limitation, any extensions, modifications,
substitutions, amendments or renewals of any or all of the foregoing
obligations), whether direct or indirect, absolute or contingent, and whether
for principal, interest, premiums, fees, indemnities, contract causes of action,
costs, expenses or otherwise (such obligations being the "Guaranteed
Obligations"), and agrees to pay any and all expenses (including, without
limitation, fees and expenses of outside counsel and the allocated costs and
expenses of in-house counsel) incurred by the Agent or any Lender in enforcing
any rights under this Agreement. Without limiting the generality of the
foregoing, the Guarantor's liability shall extend to all amounts that constitute
part of the Guaranteed Obligations and would be owed by any other Loan Party to
the Agent or any Lender under or in respect of this Agreement and the Notes but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving such other Loan
Party.
SECTION 7.02. Guaranty Absolute. The Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the Notes, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Agent or any Lender with respect thereto. This Guaranty is an
absolute and unconditional guaranty of payment when due, and not of collection,
by the Guarantor of the Guaranteed Obligations. The obligations of the Guarantor
under or in respect of this Guaranty are independent of the Guaranteed
Obligations or any other obligations of any other Loan Party under or in respect
of this Agreement and the Notes, and a separate action or actions may be brought
and prosecuted against the Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against any Borrower or whether any Borrower is
joined in any such action or actions. The liability of the Guarantor under this
Guaranty shall be irrevocable, absolute and unconditional irrespective of, and
the Guarantor hereby irrevocably waives any defenses it may now have or
hereafter acquire in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any provision of this
Agreement or any Note or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
obligations of any Borrower under or in respect of this Agreement or the
Notes, or any other amendment or waiver of or any consent to departure
from this Agreement or the Notes, including, without limitation, any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to any Borrower or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of, or consent
to departure from, any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any manner of application of collateral, or proceeds thereof, to
all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Guaranteed Obligations
or any other obligations of any Loan Party under this Agreement or the
Notes or any other assets of any Borrower or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Borrower or any of its Subsidiaries;
(f) any failure of the Agent or any Lender to disclose to the
Guarantor any information relating to the business, condition (financial
or otherwise), operations, performance, properties or prospects of any
Borrower now or hereafter known to the Agent or such Lender (the Guarantor
waiving any duty on the part of the Agent and the Lenders to disclose such
information);
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(g) the failure of any other Person to execute or deliver any other
guaranty or agreement or the release or reduction of liability of the
Guarantor or other guarantor or surety with respect to the Guaranteed
Obligations; or
(h) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Agent or any Lender that might otherwise constitute
a defense available to, or a discharge of, any Loan Party or any other
guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Agent or any Lender or any other Person
upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise,
all as though such payment had not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) The Guarantor hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that the
Agent or any Lender protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Loan Party
or any other Person or any collateral.
(b) The Guarantor hereby unconditionally and irrevocably waives any
right to revoke this Guaranty and acknowledges that this Guaranty is
continuing in nature and applies to all Guaranteed Obligations, whether
existing now or in the future.
(c) The Guarantor hereby unconditionally and irrevocably waives (i)
any defense arising by reason of any claim or defense based upon an
election of remedies by the Agent or any Lender that in any manner
impairs, reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of the
Guarantor or other rights of the Guarantor to proceed against any of the
other Loan Parties, any other guarantor or any other Person or any
collateral and (ii) any defense based on any right of set-off or
counterclaim against or in respect of the obligations of the Guarantor
hereunder.
(d) The Guarantor hereby unconditionally and irrevocably waives any
duty on the part of the Agent or any Lender to disclose to the Guarantor
any matter, fact or thing relating to the business, condition (financial
or otherwise), operations, performance, properties or prospects of any
other Loan Party or any of its Subsidiaries now or hereafter known by the
Agent or such Lender.
(e) The Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated
by this Agreement and that the waivers set forth in Section 7.02 and this
Section 7.03 are knowingly made in contemplation of such benefits.
SECTION 7.04. Subrogation. The Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against any Borrower or any other insider guarantor that arise from the
existence, payment, performance or enforcement of the Guarantor's obligations
under or in respect of this Guaranty, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution or indemnification and
any right to participate in any claim or remedy of the Agent or any Lender
against any Borrower or any other insider guarantor or any collateral, whether
or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive from
any Borrower or any other insider guarantor, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right, unless and until all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash and the Commitments shall have expired or been terminated.
If any amount shall be paid to the Guarantor in violation of the immediately
preceding sentence at any time prior to the later of the payment in full in cash
of the Guaranteed Obligations and all other amounts payable under this Guaranty
and the Termination Date, such amount shall be received and held in trust for
the benefit of Agent and the Lenders, shall be segregated from other property
and
37
funds of the Guarantor and shall forthwith be paid or delivered to the Agent in
the same form as so received (with any necessary endorsement or assignment) to
be credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of this Agreement, or to be held as collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty thereafter arising. If
(i) the Guarantor shall make payment to the Agent or any Lender of all or any
part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and
all other amounts payable under this Guaranty shall have been paid in full in
cash and (iii) the Termination Date shall have occurred, the Agent and the
Lenders will, at the Guarantor's request and expense, execute and deliver to the
Guarantor appropriate documents, without recourse and without representation or
warranty, necessary to evidence the transfer by subrogation to the Guarantor of
an interest in the Guaranteed Obligations resulting from such payment made by
the Guarantor pursuant to this Guaranty.
SECTION 7.05. Subordination. The Guarantor hereby subordinates any
and all debts, liabilities and other obligations owed to the Guarantor by each
other Loan Party (the "Subordinated Obligations") to the Guaranteed Obligations
to the extent and in the manner hereinafter set forth in this Section 7.05:
(a) Prior Payment of Guaranteed Obligations. In any proceeding under
any Bankruptcy Law relating to any other Loan Party, the Guarantor agrees
that the Agent and the Lenders shall be entitled to receive payment in
full in cash of all Guaranteed Obligations (including all interest and
expenses accruing after the commencement of a proceeding under any
Bankruptcy Law, whether or not constituting an allowed claim in such
proceeding ("Post Petition Interest")) before the Guarantor receives
payment of any Subordinated Obligations.
(b) Turn-Over. After the occurrence and during the continuance of
any Event of Default under Section 6.01(e), the Guarantor shall, if the
Agent so requests, collect, enforce and receive payments on account of the
Subordinated Obligations as trustee for the Agent and the Lenders and
deliver such payments to the Agent on account of the Guaranteed
Obligations (including all Post Petition Interest), together with any
necessary endorsements or other instruments of transfer, but without
reducing or affecting in any manner the liability of the Guarantor under
the other provisions of this Guaranty.
(c) Agent Authorization. After the occurrence and during the
continuance of any Event of Default under Section 6.01(e), the Agent is
authorized and empowered (but without any obligation to so do), in its
discretion, (i) in the name of the Guarantor, to collect and enforce, and
to submit claims in respect of, Subordinated Obligations and to apply any
amounts received thereon to the Guaranteed Obligations (including any and
all Post Petition Interest), and (ii) to require the Guarantor (A) to
collect and enforce, and to submit claims in respect of, Subordinated
Obligations and (B) to pay any amounts received on such obligations to the
Agent for application to the Guaranteed Obligations (including any and all
Post Petition Interest).
SECTION 7.06. Continuing Guaranty; Assignments. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until the
later of the payment in full in cash of the Guaranteed Obligations and all other
amounts payable under this Guaranty and the Termination Date, (b) be binding
upon the Guarantor, its successors and assigns and (c) inure to the benefit of
and be enforceable by the Agent and the Lenders and their successors,
transferees and assigns. Without limiting the generality of clause (c) of the
immediately preceding sentence, any Lender may assign or otherwise transfer all
or any portion of its rights and obligations under this Agreement (including,
without limitation, all or any portion of its Commitments, the Advances owing to
it and the Note or Notes held by it) to any other Person, and such other Person
shall thereupon become vested with all the benefits in respect thereof granted
to such Lender herein or otherwise, in each case as and to the extent provided
in Section 9.07. The Guarantor shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of each of
the Lenders.
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ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Lender (in its
capacities as a Lender and Issuing Bank, as applicable) hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by any Loan Party pursuant
to the terms of this Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the Lender that made any Advance as the holder of the Debt resulting therefrom
until the Agent receives and accepts an Assumption Agreement entered into by an
Assuming Lender as provided in Section 2.18 or an Assignment and Acceptance
entered into by such Lender, as assignor, and an Eligible Assignee, as assignee,
as provided in Section 9.07; (ii) may consult with legal counsel (including
counsel for the Loan Parties), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance, observance or satisfaction of any of the terms, covenants or
conditions of this Agreement on the part of any Loan Party or the existence at
any time of any Default or to inspect the property (including the books and
records) of any Loan Party; (v) shall not be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created
or purported to be created under or in connection with, this Agreement or any
other instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier
or telegram) believed by it to be genuine and signed or sent by the proper party
or parties.
SECTION 8.03. Citibank and Affiliates. With respect to its
Commitments, the Advances made by it and any Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Guarantor, any of its Subsidiaries and any Person who may do business with or
own securities of the Guarantor or any such Subsidiary, all as if Citibank were
not the Agent and without any duty to account therefor to the Lenders. The Agent
shall have no duty to disclose information obtained or received by it or any of
its Affiliates relating to the Guarantor or its Subsidiaries to the extent such
information was obtained or received in any capacity other than as Agent.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Agent or any other Lender
and based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 8.05. Indemnification. (a) Each Lender severally agrees to
indemnify the Agent (to the extent not promptly reimbursed by the Borrowers)
from and against such Lender's Ratable Share of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by the Agent under this
Agreement (collectively, the
39
"Indemnified Costs"), provided that no Lender shall be liable for any portion of
the Indemnified Costs resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for its Ratable Share of any out-of-pocket
expenses (including reasonable counsel fees) incurred by the Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, to the extent that the Agent is not reimbursed for such expenses
by the Borrowers. In the case of any investigation, litigation or proceeding
giving rise to any Indemnified Costs, this Section 8.05 applies whether any such
investigation, litigation or proceeding is brought by the Agent, any Lender or a
third party.
(b) Each Lender severally agrees to indemnify the Issuing Banks (to
the extent not promptly reimbursed by the Borrowers) from and against such
Lender's Ratable Share of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against any such Issuing Bank in any way relating to or arising out of this
Agreement or any action taken or omitted by such Issuing Bank hereunder or in
connection herewith; provided, however, that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from such Issuing
Bank's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse any such Issuing Bank promptly upon
demand for its Ratable Share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Borrowers under Section
9.04, to the extent that such Issuing Bank is not promptly reimbursed for such
costs and expenses by the Borrower.
(c) The failure of any Lender to reimburse the Agent or any Issuing
Bank promptly upon demand for its Ratable Share of any amount required to be
paid by the Lenders to the Agent as provided herein shall not relieve any other
Lender of its obligation hereunder to reimburse the Agent or any Issuing Bank
for its Ratable Share of such amount, but no Lender shall be responsible for the
failure of any other Lender to reimburse the Agent or any Issuing Bank for such
other Lender's Ratable Share of such amount. Without prejudice to the survival
of any other agreement of any Lender hereunder, the agreement and obligations of
each Lender contained in this Section 8.05 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the Notes.
Each of the Agent and each Issuing Bank agrees to return to the Lenders their
respective Ratable Shares of any amounts paid under this Section 8.05 that are
subsequently reimbursed by the Borrowers.
SECTION 8.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrowers and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent from among the Lenders with the consent, so long as no Event of
Default has occurred and is continuing, of the Guarantor, which consent will not
be unreasonably withheld or delayed. If no successor Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Agent, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent, which shall be a Lender that
is a commercial bank organized under the laws of the United States of America or
of any State thereof and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article VIII shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
SECTION 8.07. Sub-Agent. The Sub-Agent has been designated under
this Agreement to carry out duties of the Agent. The Sub-Agent shall be subject
to each of the obligations in this Agreement to be performed by the Sub-Agent,
and each of the Borrowers and the Lenders agrees that the Sub-Agent shall be
entitled to exercise each of the rights and shall be entitled to each of the
benefits of the Agent under this Agreement as relate to the performance of its
obligations hereunder.
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SECTION 8.08. Other Agents. Each Lender hereby acknowledges that
neither the documentation agent nor any other Lender designated as any "Agent"
on the signature pages hereof (other than the Agent) has any liability hereunder
other than in its capacity as a Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by any
Loan Party therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Required Lenders and (except for waivers or
consents by any Lender) each of the Loan Parties, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all the Lenders, do any of the following:
(a) waive any of the conditions specified in Section 3.01, (b) other than as
provided in Section 2.18, increase the Commitments of the Lenders, (c) reduce
the principal of, or interest on, the Advances or any fees or other amounts
payable hereunder, (d) postpone any date fixed for any payment of principal of,
or interest on, the Advances or any fees or other amounts payable hereunder, (e)
change the percentage of the Revolving Credit Commitments or of the aggregate
unpaid principal amount of the Advances, or the number of Lenders, that shall be
required for the Lenders or any of them to take any action hereunder, (f) amend
the definition of "Committed Currencies" to add any additional currency, (g)
reduce or limit the obligations of the Guarantor under Section 7.01 or release
the Guarantor or otherwise limit the Guarantor's liability with respect to the
obligations owing to the Agent and the Lenders under Article VII or (h) amend
this Section 9.01; and provided further that (x) no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the Agent
under this Agreement or any Note and (y) no amendment, waiver or consent shall,
unless in writing and signed by the Issuing Banks in addition to the Lenders
required above to take such action, adversely affect the rights or obligations
of the Issuing Banks in their capacities as such under this Agreement.
SECTION 9.02. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including telecopier or
telegraphic communication) and mailed, telecopied, telegraphed or delivered or
(y) as and to the extent set forth in Section 9.02(b) and (c), if to Loan
Parties, at the address of the Guarantor at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇; if to any Initial Lender, at its
Domestic Lending Office specified opposite its name on Schedule I hereto; if to
any other Lender, at its Domestic Lending Office specified in the Assumption
Agreement or the Assignment and Acceptance pursuant to which it became a Lender;
and if to the Agent, at its address at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Bank Loan Syndications Department; or, as to any Loan Party or
the Agent, at such other address as shall be designated by such party in a
written notice to the other parties and, as to each other party, at such other
address as shall be designated by such party in a written notice to the
Borrowers and the Agent, provided that materials required to be delivered
pursuant to Sections 5.01(i)(i), (ii), (iv) and (v) shall be delivered to the
Agent as specified in Section 9.02(b). All such notices and communications
shall, when mailed, telecopied or telegraphed, be effective when deposited in
the mails, telecopied or delivered to the telegraph company, respectively,
except that notices and communications to the Agent pursuant to Article II, III
or VIII shall not be effective until received by the Agent. Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be executed
and delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.
(b) So long as Citibank or any of its Affiliates is the Agent,
materials required to be delivered pursuant to Sections 5.01(i)(i), (ii), (iv)
and (v) may be delivered to the Agent in an electronic medium in a format
acceptable to the Agent and the Lenders by e-mail at
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇. The Guarantor agrees that the Agent may make such
materials, as well as any other written information, documents, instruments and
other material relating to the Guarantor, any of its Subsidiaries or any other
materials or matters relating to this Agreement, the Notes or any of the
transactions contemplated hereby, but not including any notices under Article II
(collectively, the "Communications") available to the Lenders by posting such
notices on Intralinks or a substantially similar electronic system (the
"Platform"). The Guarantor acknowledges that (i) the distribution of material
through an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution, (ii) the
Platform is provided "as is" and "as available" and (iii) neither the Agent
41
nor any of its Affiliates warrants the accuracy, adequacy or completeness of the
Communications or the Platform and each expressly disclaims liability for errors
or omissions in the Communications or the Platform. No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects, is made by the Agent
or any of its Affiliates in connection with the Platform.
(c) Each Lender agrees that notice to it (as provided in the next
sentence) (a "Notice") specifying that any Communications have been posted to
the Platform shall constitute effective delivery of such information, documents
or other materials to such Lender for purposes of this Agreement; provided that
if requested by any Lender the Agent shall deliver a copy of the Communications
to such Lender by email or telecopier. Each Lender agrees (i) to notify the
Agent in writing of such Lender's e-mail address to which a Notice may be sent
by electronic transmission (including by electronic communication) on or before
the date such Lender becomes a party to this Agreement (and from time to time
thereafter to ensure that the Agent has on record an effective e-mail address
for such Lender) and (ii) that any Notice may be sent to such e-mail address.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrowers agree to pay on
demand all costs and expenses of the Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agent with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under this
Agreement. The Borrowers further agree to pay on demand all costs and expenses
of the Agent and the Lenders, if any (including, without limitation, reasonable
fees and expenses of outside counsel and the allocated costs and expenses of
in-house counsel), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Agent and each Lender in
connection with the enforcement of rights under this Section 9.04(a).
(b) The Borrowers agree to indemnify and hold harmless the Agent and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation or proceeding or preparation of a
defense in connection therewith) (i) the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances or (ii) the actual or alleged presence of hazardous materials on
any property of the Guarantor or any of its Subsidiaries or any Environmental
Action relating in any way to the Guarantor or any of its Subsidiaries, except
to the extent such claim, damage, loss, liability or expense is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the
indemnity in this Section 9.04(b) applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by any
Loan Party, its directors, equityholders or creditors or an Indemnified Party or
any other Person, whether or not any Indemnified Party is otherwise a party
thereto and whether or not the transactions contemplated hereby are consummated.
The Loan Parties also agree not to assert any claim for special, indirect,
consequential or punitive damages against the Agent, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees, attorneys
and agents, on any theory of liability, arising out of or otherwise relating to
the Notes, this Agreement, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurocurrency Rate Advance is made by any Borrower to or for the account of a
Lender (i) other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.08, 2.10 or 2.12,
acceleration of the maturity
42
of the Notes pursuant to Section 6.01 or for any other reason, or by an Eligible
Assignee to a Lender other than on the last day of the Interest Period for such
Advance upon an assignment of rights and obligations under this Agreement
pursuant to Section 9.07 as a result of a demand by the Guarantor pursuant to
Section 9.07(a) or (ii) as a result of a payment or Conversion pursuant to
Section 2.08, 2.10 or 2.12, the Borrower of such Advance shall, upon demand by
such Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment or Conversion, including, without limitation, any loss (including
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender to
fund or maintain such Advance. If the amount of the Committed Currency purchased
by any Lender in the case of a Conversion or exchange of Advances in the case of
Section 2.08 or 2.12 exceeds the sum required to satisfy such Lender's liability
in respect of such Advances, such Lender agrees to remit to the applicable
Borrower such excess.
(d) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in Sections 2.11, 2.14 and 9.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of any Loan Party against any and
all of the obligations of such Loan Party now or hereafter existing under this
Agreement and any Note held by such Lender, whether or not such Lender shall
have made any demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify the
applicable Loan Party after any such set-off and application, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its Affiliates under this Section are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender and its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective
(other than Section 2.01, which shall only become effective upon satisfaction of
the conditions precedent set forth in Section 3.01) when it shall have been
executed by each Loan Party and the Agent and when the Agent shall have been
notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Loan Parties,
the Agent and each Lender and their respective successors and assigns and each
Indemnified Party, except that no Loan Party shall have the right to assign its
rights hereunder or any interest herein without the prior written consent of
each of the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender may
and, if demanded by the Guarantor (following a demand by such Lender pursuant to
Section 2.11 or 2.14) upon at least five Business Days' notice to such Lender
and the Agent, will assign to one or more Persons all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of its Revolving Credit Commitment, its Unissued Letter of Credit
Commitment, the Advances owing to it, its participations in Letters of Credit
and the Note or Notes held by it); provided, however, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all rights
and obligations under this Agreement, (ii) except in the case of an assignment
to a Person that, immediately prior to such assignment, was a Lender or an
assignment of all of a Lender's rights and obligations under this Agreement, the
amount of the Revolving Credit Commitment or Unissued Letter of Credit
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof unless the Guarantor and the
Agent otherwise agree, (iii) each such assignment shall be to an Eligible
Assignee, (iv) each such assignment made as a result of a demand by the
Guarantor pursuant to this Section 9.07(a) shall be arranged by the Guarantor
after consultation with the Agent and shall be either an assignment of all of
the rights and obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments that together cover all of the
rights and obligations of the assigning Lender under this Agreement,
43
(v) no Lender shall be obligated to make any such assignment as a result of a
demand by the Guarantor pursuant to this Section 9.07(a) unless and until such
Lender shall have received one or more payments from either the Borrowers or one
or more Eligible Assignees in an aggregate amount at least equal to the
aggregate outstanding principal amount of the Advances owing to such Lender,
together with accrued interest thereon to the date of payment of such principal
amount and all other amounts payable to such Lender under this Agreement and
(vi) the parties to each such assignment shall execute and deliver to the Agent,
for its acceptance and recording in the Register, an Assignment and Acceptance,
together with any Note subject to such assignment and a processing and
recordation fee of $3,500, payable by the parties to each such assignment,
provided, however, that in the case of each assignment made as a result of a
demand by the Guarantor, such recordation fee shall be payable by the Guarantor
except that no such recordation fee shall be payable in the case of an
assignment made at the request of the Guarantor to an Eligible Assignee that is
an existing Lender. Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in each Assignment and Acceptance,
(x) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
and (y) the Lender assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (other than its rights under Section 2.11,
2.14 and 9.04 to the extent any claim thereunder relates to an event arising
prior such assignment) and be released from its obligations (other than its
obligations under Section 8.05 to the extent any claim thereunder relates to an
event arising prior to such assignment) under this Agreement (and, in the case
of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created
or purported to be created under or in connection with, this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Loan Party or the performance or
observance by any Loan Party of any of its obligations under this Agreement or
any other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to the Agent by the terms hereof, together
with such powers and discretion as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be performed
by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice
thereof to the Borrowers.
(d) The Agent shall maintain at its address referred to in Section
9.02 a copy of each Assumption Agreement and each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lenders and the Commitment of, and principal amount of the
Advances owing to, each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and each Loan Party, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The
44
Register shall be available for inspection by any Loan Party or any Lender at
any reasonable time and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or
other entities (other than the Guarantor or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to it
and any Note or Notes held by it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitment
to the Borrowers hereunder) shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) such Lender shall remain the holder of any such Note for
all purposes of this Agreement, (iv) the Borrowers, the Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
(v) no participant under any such participation shall have any right to approve
any amendment or waiver of any provision of this Agreement or any Note, or any
consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Advances or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, or postpone any date fixed for any payment
of principal of, or interest on, the Advances or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation, or
reduce or limit the obligations of the Guarantor under Section 7.01 or release
the Guarantor from its obligations under Article VII.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Guarantor furnished to such Lender
by or on behalf of the Guarantor; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Guarantor received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and any Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 9.08. Confidentiality. Neither the Agent nor any Lender
shall disclose any Confidential Information to any other Person without the
consent of the Guarantor, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and, as
contemplated by Section 9.07(f), to actual or prospective assignees and
participants, and then only on a confidential basis, (b) as required by any law,
rule or regulation or judicial process, (c) as requested or required by any
state, federal or foreign authority or examiner regulating banks or banking and
(d) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder.
SECTION 9.09. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 9.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.11. Judgment. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder in Dollars
into another currency, 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 the Agent could purchase Dollars with
such other currency at Citibank's principal office in London at 11:00 A.M.
(London time) on the Business Day preceding that on which final judgment is
given.
(b) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in a Committed Currency into Dollars,
the parties agree to the fullest extent that they may effectively do
45
so, that the rate of exchange used shall be that at which in accordance with
normal banking procedures the Agent could purchase such Committed Currency with
Dollars at Citibank's principal office in London at 11:00 A.M. (London time) on
the Business Day preceding that on which final judgment is given.
(c) The obligation of the Borrowers in respect of any sum due from
it in any currency (the "Primary Currency") to any Lender or the Agent hereunder
shall, notwithstanding any judgment in any other currency, be discharged only to
the extent that on the Business Day following receipt by such Lender or the
Agent (as the case may be), of any sum adjudged to be so due in such other
currency, such Lender or the Agent (as the case may be) may in accordance with
normal banking procedures purchase the applicable Primary Currency with such
other currency; if the amount of the applicable Primary Currency so purchased is
less than such sum due to such Lender or the Agent (as the case may be) in the
applicable Primary Currency, the Borrowers agree, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the Agent (as the
case may be) against such loss, and if the amount of the applicable Primary
Currency so purchased exceeds such sum due to any Lender or the Agent (as the
case may be) in the applicable Primary Currency, such Lender or the Agent (as
the case may be) agrees to remit to the applicable Borrower such excess.
SECTION 9.12. 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 federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. The Loan Parties hereby agree that service of process in
any such action or proceeding brought in the any such New York State court or in
such federal court may be made upon the Guarantor at its offices at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: General Counsel and the
Loan Parties hereby irrevocably appoint the Guarantor its authorized agent to
accept such service of process, and agrees that the failure of the Guarantor to
give any notice of any such service shall not impair or affect the validity of
such service or of any judgment rendered in any action or proceeding based
thereon. Each Loan Party hereby further irrevocably consents to the service of
process in any action or proceeding in such courts by the mailing thereof by any
parties hereto by registered or certified mail, postage prepaid, to such Loan
Party at its address specified pursuant to Section 9.02. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 9.13. Substitution of Currency. If a change in any Committed
Currency occurs pursuant to any applicable law, rule or regulation of any
governmental, monetary or multi-national authority, this Agreement (including,
without limitation, the definitions of Eurocurrency Rate) will be amended to the
extent determined by the Agent (acting reasonably and in consultation with the
Guarantor) to be necessary to reflect the change in currency and to put the
Lenders and the Borrowers in the same position, so far as possible, that they
would have been in if no change in such Committed Currency had occurred.
SECTION 9.14. No Liability of the Issuing Banks. The Borrowers
assume all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
an Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances
46
whatsoever in making or failing to make payment under any Letter of Credit,
except that the applicable Borrower shall have a claim against such Issuing
Bank, and such Issuing Bank shall be liable to such Borrower, to the extent of
any direct, but not consequential, damages suffered by such Borrower that were
caused by (i) such Issuing Bank's willful misconduct or gross negligence in
determining whether documents presented under any Letter of Credit comply with
the terms of such Letter of Credit or (ii) such Issuing Bank's grossly negligent
or willful failure to make lawful payment under a Letter of Credit after the
presentation to it of a draft and certificates strictly complying with the terms
and conditions of the Letter of Credit. In furtherance and not in limitation of
the foregoing, such Issuing Bank may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary.
SECTION 9.15. Patriot Act. Each Lender hereby notifies the Guarantor
and each the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it
is required to obtain, verify and record information that identifies each
borrower, guarantor or grantor (the "Loan Parties"), which information includes
the name and address of each Loan Party and other information that will allow
such Lender to identify such Loan Party in accordance with the Act.
47
SECTION 9.16. Waiver of Jury Trial. Each of the Loan Parties, the
Agent and the Lenders hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
OMNICOM FINANCE INC., as Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Director & Treasurer
OMNICOM CAPITAL INC., as Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: President & CEO
OMNICOM FINANCE PLC., as Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Director
By: /s/ A. Phipkin
----------------------------------
Title: Director of Finance and Operations
OMNICOM GROUP INC., as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Director
CITIBANK, N.A., as Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
----------------------------------
Title: Vice President
48
Initial Issuing Banks
---------------------
Letter of Credit Commitment
---------------------------
$100,000,000 CITIBANK, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
------------------
Title: Vice President
$100,000,000 Total of the Letter of Credit Commitments
Revolving Credit Commitment
---------------------------
Initial Lenders
---------------
Commitment
----------
$161,250,000 CITIBANK, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
---------------------------------
Title: Vice President
$161,250,000 JPMORGAN CHASE BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Managing Director
$131,250,000 ABN AMRO BANK N.V.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Vice President
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Director
$131,250,000 HSBC BANK USA
By /s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Senior Vice President
Managing Agents
---------------
$112,500,000 BANK OF AMERICA, N.A.
By /s/▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Vice President
$112,500,000 SOCIETE GENERALE
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Director
49
$75,000,000 SUMITOMO MITSUI BANKING CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
---------------------------------
Title: Senior Vice President
$75,000,000 WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Title: Director
Lenders
-------
$45,000,000 BANCO BILBAO VIZCAYA ARGENTARIA
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
$37,500,000 THE BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By /s/ ▇▇▇▇▇▇▇ ▇▇▇
---------------------------------
Title: Vice President
$37,500,000 BARCLAYS BANK PLC
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
Title: Director
$37,500,000 BNP PARIBAS
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Vice President
$37,500,000 DANSKE BANK A/S
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Vice President
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Assistant Vice President
$37,500,000 FORTIS CAPITAL CORP.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Vice President
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Executive Vice President
50
$37,500,000 PNC BANK, NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Managing Director
$37,500,000 U.S. BANK NATIONAL ASSOCIATION
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
$33,750,000 THE NORTHERN TRUST COMPANY
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Second Vice President
$30,000,000 ▇▇▇▇▇ FARGO BANK
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Senior Vice President
$26,250,000 UBS LOAN FINANCE LLC
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Associate Director
$22,500,000 SANPAOLO IMI S.p.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: General Manager
$18,750,000 ALLIED IRISH BANK
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Title: Relationship Manager
By /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: Senior Manager
$18,750,000 MIZUHO CORPORATE BANK, LTD.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Title: Senior Vice President
$18,750,000 NORDEA BANK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Title: First Vice President
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------------
Title: Second Vice President
51
$18,750,000 RBC CENTURA BANK
By /s/ E. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Market Manager
$18,750,000 WESTPAC BANKING CORPORATION
By /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Vice President
$15,000,000 THE BANK OF NOVA SCOTIA
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Managing Director
SCOTIABANK EUROPE PLC
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Managing Director
$11,250,000 FIFTH THIRD BANK
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Title: Assistant Vice President
$1,500,000,000 Total of the Commitments
52
SCHEDULE I
OMNICOM GROUP
AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
----------------------------------------------------------------------------------------------------------------------
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
ABN Amro Bank N.V. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------------------------------------------------------------------------------------------
Allied Irish Banks, PLC Business Support Unit Business Support ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ Ballsbridge Dublin 4
Ireland Ireland
Attn: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
T: ▇▇ ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇ ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇ ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇ ▇▇▇ ▇▇▇-▇▇▇▇
----------------------------------------------------------------------------------------------------------------------
Banco Bilbao Vizcaya Argentaria 1345 Avenue of the Americas 1345 Avenue of the Americas
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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Bank of America, N.A. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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The Bank of Nova Scotia ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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The Bank of Tokyo-Mitsubishi Trust Company 1251 Avenue of the Americas ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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Barclays Bank PLC ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
T: ▇▇▇ ▇▇▇ ▇▇▇▇ T: ▇▇▇ ▇▇▇ ▇▇▇▇
F: ▇▇▇ ▇▇▇ ▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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BNP Paribas ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
T: 212 471-6630 T: 212 471-6630
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
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Citibank, N.A. Two Penns Way ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇ ▇/▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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Fifth Third Bank ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ Cincinnati, OH
Attn: ▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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Fortis Capital Corp. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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HSBC Bank USA One HSBC Center 26th Floor ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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JPMorgan Chase Bank One Chase Manhattan Plaza ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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Mizuho Corporate Bank, Ltd. Harborside Financial Center Harborside Financial Center
1800 Plaza Ten 1800 Plaza Ten
Jersey City, NJ 07311-4098 ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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Nordea Bank Finland Plc ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 21st floor ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
T: ▇▇▇-▇▇▇-▇▇▇▇ T: ▇▇▇-▇▇▇-▇▇▇▇
F: ▇▇▇-▇▇▇-▇▇▇▇ F: ▇▇▇-▇▇▇-▇▇▇▇
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The Northern Trust Company ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: 312 630-1566 F: 312 630-1566
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PNC Bank, National Association ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: 412 766-6214
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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2
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Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
----------------------------------------------------------------------------------------------------------------------
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RBC Centura Bank ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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SANPAOLO IMI S.p.A. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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Scotiabank Europe plc Scotia House Scotia House
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇ / ▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇ / ▇▇▇ ▇▇▇▇▇
T: 00 44 20 7826 5869 / 5633 T: 00 44 20 7826 5869 / 5633
F: 00 44 20 7826 5617 F: 00 44 20 7826 5617
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Societe Generale ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ Hooves Attn: ▇▇▇▇▇ Hooves
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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Sumitomo Mitsui Banking Corporation ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
F: 212 224-4384 F: 212 224-4384
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UBS Loan Finance LLC ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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U.S. Bank National Association ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code MK-WI-TGCB Mail Code MK-WI-TGCB
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
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Wachovia Bank, National Association ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, CP-17 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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▇▇▇▇▇ Fargo Bank ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇-▇▇▇ MAC ▇▇▇▇▇-▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
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Westpac Banking Corporation ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Attn: Loan Operations Attn: Loan Operations
F: 011 44 207 621-7608 F: 011 44 207 621-7608
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3
SCHEDULE 3.01(b)
----------------
DISCLOSED LITIGATION
Beginning on June 13, 2002, several proposed class actions were filed against
Omnicom Group Inc. ("OGI") and certain of OGI's senior executives in the United
States District Court for the Southern District of New York. The actions have
since been consolidated under the caption In re Omnicom Group Inc. Securities
Litigation, No. 02-CV4483 (RCC) on behalf of a proposed class of purchasers of
OGI's common stock between February 20, 2001 and June 11, 2002. The consolidated
amended complaint alleges among other things that OGI's public filings and other
public statements during that period contained false and misleading statements
or omitted to state material information relating to (1) OGI's calculation of
the organic growth component of period-to-period revenue growth, (2) OGI's
valuation of certain internet investments made by OGI's Communicade Group, which
OGI contributed to Seneca Investments LLC in 2001, and (3) the existence and
amount of certain contingent future obligations in respect of acquisitions. The
complaint seeks an unspecified amount of compensatory damages plus costs and
attorneys' fees. Defendants have moved to dismiss the complaint. The court has
not yet decided the motion. Discovery has not yet commenced in this proceeding.
In addition to the proceedings described above, a shareholder derivative action
was filed on June 28, 2002 in New York State Court in New York City by a
plaintiff shareholder, purportedly on OGI's behalf, alleging breaches of
fiduciary duty, disclosure failures, abuse of control and gross mismanagement in
connection with the formation of Seneca Investments LLC, including as a result
of open-market sales of OGI's common shares by OGI's chairman and two former
employee directors. The complaint seeks the imposition of a constructive trust
on profits received in the stock sales, an unspecified amount of money damages
and attorneys' fees and other costs. A motion has been filed to dismiss this
action. Subsequently, the parties agreed to stay further proceedings in this
case pending additional developments in the class action cases described above.
Management presently expects to defend these cases vigorously. Currently, OGI is
unable to determine the outcome of these cases and the effect on OGI's financial
position or results of operations. The outcome of any of these matters is
inherently uncertain and may be affected by future events.
SCHEDULES 5.02(a) AND 5.02(d)
-----------------------------
EXISTING LIENS AND EXISTING DEBT
Amount Due
Subsidiary Borrower Lender(s) Each Lender Total Debt
------------------- --------- ----------- ----------
DAS ▇▇▇▇▇▇▇▇▇▇ Citizens Leasing Corp. 256,643
CIT Group 165,688
BankNorth 154,982 577,293
DAS ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ JTA 1,573
SBC Capital Inc. 4,030 5,603
DAS ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ NEC Leasing 14,680
Bank of Tokyo Mitsubishi 479,350
Daimler Chrysler 16,140 510,170
DAS GMR Key Corporate Financial 113,370 113,370
DAS GPC Domestic Lucent 14,228
Xerox 9,717 23,945
DAS ▇▇▇▇▇▇▇▇ Xerox 29,563 29,563
DAS Interbrand Corp. Key Equipment Finance 130,713 130,713
DAS ▇▇▇▇▇▇▇▇ Media Group Inc. NTFC Capital 18,204 18,204
DAS National In-Store Advanta 7,533
Chesterfield 3,997
USBancorp 55,201
LPI 4,144
Safeline 6,380 77,255
DAS ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Steelcase 57,122
NEC Leasing 17,815 74,937
DAS The Promotion Network GMAC 44,005 44,055
DAS TPG Newcourt Leasing 46,244
Copelco Capital 16,549
▇▇▇▇▇ Fargo 11,154
Citicorp 15,618 89,545
DAS U30 Group Dryad 16,289 16,289
OMG Organic ▇▇▇▇▇ Fargo 4,666
Neopost 2,389 7,055
Cardinia Real Estate Osprey House 17,044,598 17,044,598
----------- -----------
TOTAL $18,748,289 $18,748,289
=========== ===========
Omnicom Group Inc. has three zero coupon convertible bonds
outstanding maturing in 2031, 2032 and 2033. The principal amounts outstanding
for each of these bonds are $847,031,000, $892,273,000 and $600,000,000,
respectively. In addition, Omnicom Group Inc. has a 5.20% Euro-denominated note
with a principal amount outstanding of (euro)152,449,017.
EXHIBIT A - FORM OF
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, [OMNICOM FINANCE INC., a
Delaware corporation][OMNICOM CAPITAL INC., a Connecticut corporation][OMNICOM
FINANCE PLC, a corporation organized under the laws of England and Wales], (the
"Borrower"), HEREBY PROMISES TO PAY to the order of _________________________
(the "Lender") for the account of its Applicable Lending Office on the
Termination Date (each as defined in the Credit Agreement referred to below) the
principal sum of U.S.$[amount of the Lender's Commitment in figures] or, if
less, the aggregate principal amount of the Advances made by the Lender to the
Borrower pursuant to the Amended and Restated Five Year Credit Agreement dated
as of May 24, 2004 among the Borrowers referred to therein (including the
undersigned), the Lender and certain other lenders parties thereto, Citigroup
Global Markets Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as lead arrangers and book
managers, ABN AMRO Bank N.V., as syndication agent, JPMorgan Chase Bank and HSBC
Bank USA, as documentation agents, and Citibank, N.A. as Agent for the Lender
and such other lenders (as amended or modified from time to time, the "Credit
Agreement"; the terms defined therein being used herein as therein defined)
outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal amount
of each Advance from the date of such Advance until such principal amount is
paid in full, at such interest rates, and at such times, as are specified in the
Credit Agreement.
Both principal and interest in respect of each Advance (i) in
Dollars are payable in lawful money of the United States of America to the Agent
at its account maintained at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in
same day funds and (ii) in any Committed Currency are payable in such currency
at the applicable Payment Office in same day funds. Each Advance owing to the
Lender by the Borrower pursuant to the Credit Agreement, and all payments made
on account of principal thereof, shall be recorded by the Lender and, prior to
any transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, (i) provides for the making of Advances by the Lender to the
Borrower from time to time in an aggregate amount not to exceed at any time
outstanding, subject to Section 2.10(b) of the Credit Agreement, 103% of the
Dollar amount first above mentioned, the indebtedness of the Borrower resulting
from each such Advance being evidenced by this Promissory Note, (ii) contains
provisions for determining the Dollar Equivalent of Advances denominated in
Committed Currencies and (iii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
[OMNICOM FINANCE INC.]
[OMNICOM CAPITAL INC.]
[OMNICOM FINANCE PLC]
By ___________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
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Amount of
Date Amount of Principal Paid Unpaid Principal Notation
Advance or Prepaid Balance Made By
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2
EXHIBIT B - FORM OF NOTICE OF
BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, [Omnicom Finance Inc.][Omnicom Capital
Inc.][Omnicom Finance plc], (the "Borrower"), refers to the Amended and Restated
Five Year Credit Agreement, dated as of May 24, 2004 (as amended or modified
from time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined), among the Borrowers referred to therein (including
the undersigned), certain Lenders parties thereto, Citigroup Global Markets Inc.
and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as lead arrangers and book managers, ABN AMRO
Bank N.V., as syndication agent, JPMorgan Chase Bank and HSBC Bank USA, as
documentation agents, and Citibank, N.A., as Agent for said Lenders, and hereby
gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement
that the undersigned hereby requests a Borrowing under the Credit Agreement, and
in that connection sets forth below the information relating to such Borrowing
(the "Proposed Borrowing") as required by Section 2.02(a) of the Credit
Agreement:
(i) The Business Day of the Proposed Borrowing is _______________,
200_.
(ii) The Type of Advances comprising the Proposed Borrowing is [Base
Rate Advances] [Eurocurrency Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$_______________][for a Borrowing in a Committed Currency, list currency
and amount of Borrowing].
[(iv) The initial Interest Period for each Eurocurrency Rate Advance
made as part of the Proposed Borrowing is _____ month[s]. [If nine or
twelve months is selected, specify alternate Interest Period of one, two,
three or six months.]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01 of
the Credit Agreement (except the representations set forth in the last
sentence of subsection (e) thereof and in subsection (f)(i) thereof)) are
correct, before and after giving effect to the Proposed Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date; and
(B) no event has occurred and is continuing, or would result from
such Proposed Borrowing or from the application of the proceeds therefrom,
that constitutes a Default.
Very truly yours,
[OMNICOM FINANCE INC.]
[OMNICOM CAPITAL INC.]
[OM
NICOM FINANCE PLC]
By __________________
Title:
2
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Five Year Credit
Agreement dated as of May 24, 2004 (as amended or modified from time to time,
the "Credit Agreement") among Omnicom Finance Inc., Omnicom Capital Inc. and
Omnicom Finance plc (the "Borrowers"), Omnicom Group Inc. (the "Guarantor"), the
Lenders (as defined in the Credit Agreement), Citigroup Global Markets Inc. and
▇.▇. ▇▇▇▇▇▇ Securities Inc., as lead arrangers and book managers, ABN AMRO Bank
N.V., as syndication agent, JPMorgan Chase Bank and HSBC Bank USA, as
documentation agents, and Citibank, N.A., as agent for the Lenders (the
"Agent"). Terms defined in the Credit Agreement are used herein with the same
meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under [the Credit Agreement as of the date
hereof] [the Letter of Credit Facility] equal to the percentage interest
specified on Schedule 1 hereto of [all outstanding rights and obligations under
the Credit Agreement together with participations in Letters of Credit held by
the Assignor on the date hereof] [such Assignor's Unissued Letter of Credit
Commitment]. After giving effect to such sale and assignment, the Assignee's
[Revolving Credit Commitment and the amount of the Advances], Letter of Credit
Commitment] owing to the Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of, or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with, the Credit
Agreement or any other instrument or document furnished pursuant thereto; (iii)
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of any Loan Party or the performance or observance by
any Loan Party of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; and (iv) attaches the Note[,
if any,] held by the Assignor [and requests that the Agent exchange such Note
for a new Note payable to the order of [the Assignee in an amount equal to the
Revolving Credit Commitment assumed by the Assignee pursuant hereto or new Notes
payable to the order of the Assignee in an amount equal to the Revolving Credit
Commitment assumed by the Assignee pursuant hereto and] the Assignor in an
amount equal to the Revolving Credit Commitment retained by the Assignor under
the Credit Agreement[, respectively,] as specified on Schedule 1 hereto].
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will perform
in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (vi)
attaches any U.S. Internal Revenue Service or U.K. Inland Revenue forms required
under Section 2.14 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the
"Effective Date") shall be the date of acceptance hereof by the Agent, unless
otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after
the Effective Date, the Agent shall make all payments under the Credit Agreement
and the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest, fees and Letter of Credit
commissions with respect thereto) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments under the Credit Agreement
and the Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
2
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Revolving Credit Commitment: $______
Aggregate outstanding principal amount of Advances assigned: $______
Principal amount of Note payable to Assignee: $______
Principal amount of Note payable to Assignor: $______
[Assignee's Letter of Credit Commitment: $______]
Effective Date*: _______________, 200_
[NAME OF ASSIGNOR], as Assignor
By ____________________________
Title:
Dated: _______________, 200_
[NAME OF ASSIGNEE], as Assignee
By ____________________________
Title:
Dated: _______________, 200_
Domestic Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
----------
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
3
Accepted [and Approved]** this
__________ day of _______________, 200_
CITIBANK, N.A., as Agent
By ____________________________________
Title:
[Approved this __________ day
of _______________, 200_
OMNICOM GROUP INC.
By ____________________________________]*
Title:
----------
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
* Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
4
EXHIBIT D-1 - FORM OF
OPINION OF NEW YORK COUNSEL
FOR THE LOAN PARTIES
May 24, 2004
To each of the Lenders parties
to the Amended and Restated Five
Year Credit Agreement referred to below
Omnicom Finance Inc., Omnicom Capital Inc. and Omnicom Finance plc
------------------------------------------------------------------
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(h)(iv) of
the Amended and Restated Five Year Credit Agreement, dated as of May 24, 2004
(the "Credit Agreement"), by and among Omnicom Finance Inc. ("OFI"), Omnicom
Capital Inc. ("OCI"), and Omnicom Finance plc ("OFP", and, collectively with OFI
and OCI, the "Borrowers"), Omnicom Group Inc. (the "Guarantor"), the banks,
financial institutions and other institutional lenders and initial issuing banks
listed on the signature pages thereof, Citigroup Global Markets Inc. and ▇.▇.
▇▇▇▇▇▇ Securities Inc., as joint lead arrangers and book managers, ABN Amro Bank
N.V., as syndication agent, JPMorgan Chase Bank and HSBC Bank USA, as
documentation agents, and Citibank, N.A., as administrative agent (the "Agent")
for the Lenders. Capitalized terms used herein without definition are used as
defined in the Credit Agreement.
We have acted as New York counsel for the Loan Parties in connection
with the preparation, execution and delivery of the Credit Agreement.
In connection with this opinion, we have examined originals or
copies (including conformed copies) of the following documents:
(1) The Credit Agreement.
(2) The documents furnished by the Loan Parties pursuant to Article
III of the Credit Agreement (together with the Credit Agreement, the
"Credit Documents").
(3) The Certificate of Incorporation and all amendments thereto (the
"Charter") of each of OFI, OCI and the Guarantor (collectively, the "US
Loan Parties"), as certified as of a recent date by a public official of
the state of its incorporation.
(4) The by-laws and all amendments thereto (the "By-laws") of each
US Loan Party, as certified to us by each US Loan Party.
(5) A certificate of the Secretary of State of Delaware, dated May
6, 2004, attesting to the continued corporate existence and good standing
of OFI in that State as of the date thereof.
(6) A certificate of the Secretary of State of Connecticut, dated
May 7, 2004, attesting to the continued corporate existence and good
standing of OCI in that State as of the date thereof.
(7) A certificate of the Secretary of State of New York, dated May
7, 2004, attesting to the continued corporate existence and good standing
of the Guarantor in that State as of the date thereof.
In addition, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such records, instruments and other
documents, and have made such other investigations, as we have deemed relevant
and necessary as a basis for the opinions hereinafter set forth.
For the purposes hereof, we have assumed, with your permission and
without independent verification of any kind: (a) that the signatures of persons
signing all documents in connection with which this opinion is rendered are
genuine; (b) the legal capacity of all natural persons; (c) that all documents
submitted to us as originals or duplicate originals are authentic; and (d) that
all documents submitted to us as copies, whether certified or not, conform to
authentic original documents. As to questions of fact relevant to this opinion,
we have assumed, without independent investigation or verification of any kind,
the accuracy of the representations and warranties of the Loan Parties in the
Credit Agreement and have relied upon certificates and oral or written
statements and other information of public officials, and officers and
representatives of the Loan Parties. For purposes of the opinion set forth in
the paragraph numbered 1 below, we have relied solely upon copies of good
standing certificates as certified by public officials as of the dates and in
the jurisdictions listed on Annex I hereto.
In rendering the opinions expressed below, we have assumed, with
your permission and without any independent investigation or verification of any
kind, that: (i) OFP has been duly organized and is validly existing and in good
standing under the laws of its jurisdiction of incorporation and is duly
qualified in each other jurisdiction in which the conduct of its business or the
ownership of its property makes such qualification necessary; (ii) OFP has full
power and authority to execute, deliver and perform the Credit Documents to
which it is a party; (iii) the execution, delivery and performance of the Credit
Documents by OFP have been duly authorized by all requisite corporate action on
the part of OFP; (iv) the Credit Documents have been duly executed and delivered
by OFP; and (v) the execution, delivery and performance of the Credit Documents
by OFP do not and will not violate the Charter, By-laws or other organizational
documents of OFP. We have further assumed, with your permission and without any
independent investigation or verification of any kind, that the Credit Agreement
constitutes the valid and legally binding obligation of each Person party
thereto (other than the US Loan Parties and OFP), enforceable against such
Person in accordance with its terms. Furthermore, in giving the opinions set
forth in paragraphs numbered 4, 5 and 6 below, we express no opinion as to state
securities or blue sky laws.
Based upon the foregoing, and subject to the limitations set forth
herein, we are of the opinion that:
1. Each US Loan Party (i) is a validly existing corporation in good
standing under the laws of the jurisdiction of its incorporation listed on Annex
I hereto and (ii) has the corporate power and authority to own its property and
assets and to transact the business in which it is engaged.
2. Each US Loan Party has the corporate power to execute, deliver
and perform the terms and provisions of the Credit Agreement and the Notes to be
delivered by it and has taken all necessary corporate action to authorize the
execution, delivery and performance of the Credit Agreement and the Notes to be
delivered by it. Each US Loan Party has duly executed and delivered the Credit
Agreement and the Notes to be delivered by it .
3. The Credit Agreement constitutes the legal, valid and binding
obligation of each Loan Party enforceable against such Loan Party in accordance
with its terms. Each Note to be delivered by a Loan Party will constitute the
legal, valid and binding obligation of such Loan Party enforceable against such
Loan Party in accordance with its terms.
4. Neither the execution and delivery, nor the performance, by any
US Loan Party of the Credit Agreement or the Notes to be delivered by it, nor
compliance by such US Loan Party with the
2
terms and provisions thereof, (i) will contravene any provision of any law,
statute, rule or regulation (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System) of the United States of
America or the State of New York applicable to such US Loan Party or (ii) will
violate any provision of the Charter or By-Laws of such US Loan Party.
5. Neither the execution and delivery, nor the performance, by OFP
of the Credit Agreement and the Notes to be delivered by it, nor compliance by
it with the terms and provisions thereof, will contravene any provision of any
law, statute, rule or regulation (including, without limitation, Regulation X of
the Board of Governors of the Federal Reserve System) of the United States of
America or the State of New York applicable to OFP.
6. No order, consent, approval, license, authorization or validation
of, or filing, recording or registration with (except as have been obtained or
made on or prior to the date hereof), or exemption by, any governmental or
public body or authority of the United States of America, or the State of New
York, applicable to any Loan Party is required to authorize, or is required in
connection with, (i) the execution, delivery and performance by any Loan Party
of the Credit Agreement and the Notes to be delivered by it or (ii) the
enforceability of the Credit Agreement and the Notes to be delivered by it in
accordance with their terms against such Loan Party.
7. The choice of New York law as the governing law of the Credit
Agreement and the Notes is, under the laws of the State of New York, a valid
choice of law.
8. The consent by each Loan Party in Section 9.12 of the Credit
Agreement to the jurisdiction of courts sitting in the State of New York is a
valid consent to the jurisdiction of such courts.
Our opinions are subject to the qualifications that:
A. The enforceability of the Credit Agreement and the Notes is
subject to and may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium, or other similar laws relating to or
affecting the rights of creditors generally (including such as may deny giving
effect to waivers of debtors' or guarantors' rights), and the application of
general principles of equity (regardless of whether considered in a proceeding
in equity or at law), including, without limitation, (i) the possible
unavailability of specific performance, injunctive relief or any other equitable
remedy and (ii) concepts of materiality, reasonableness, good faith and fair
dealing. Accordingly, no opinion is given herein as to (i) the availability of
the right to accelerate any obligation and certain remedies provided for in the
Credit Agreement in the event of a nonmaterial default, or (ii) the
enforceability of any provision of the Credit Agreement relating to cumulation
of remedies or waiving the remedy of specific performance, or the waiver of
debtors' rights.
B. We express no opinion as to the enforceability of any contractual
provision in the Credit Agreement as to waiver of any procedural right,
including, without limitation, (i) the first sentence of Section 9.12(a) of the
Credit Agreement insofar as such sentence relates to the subject matter
jurisdiction of a federal court of the United States of America sitting in New
York City to adjudicate any controversy related to any of the Credit Documents,
and (ii) the waiver of inconvenient forum set forth in Section 9.12(b) of the
Credit Agreement with respect to proceedings in a federal court of the United
States of America sitting in New York City.
C. We express no opinion as to the enforceability of any contractual
provision in the Credit Documents relating to indemnification, including,
without limitation, with respect to the enforceability of Section 9.04 of the
Credit Agreement, to the extent that these may be limited (i) in the case of
litigation against any Loan Party which is decided adversely to the person
claiming indemnification or in a case involving a claim of indemnification for
attorneys' fees, (ii) by laws rendering unenforceable indemnification contrary
to federal or state securities laws and the public policy underlying such laws,
or (iii) by laws limiting the enforceability of provisions exculpating or
exempting a party, or requiring indemnification of a party, for liability for
its own action or inaction, to the extent the action or inaction involves gross
negligence, recklessness, willful misconduct or unlawful conduct.
3
D. Furthermore, no opinion is given herein as to:
(i) Section 7.02 of the Credit Agreement, to the extent that it
relates to action contemplated by Section 7.02(b) of the Credit Agreement
taken without the Guarantor's consent, which may not be enforceable to the
extent that the Guaranteed Obligations are materially altered; or
(ii) the enforceability of the provisions of Section 9.11 of the
Credit Agreement (A) to the extent that a judgment not in (1) Dollars is
obtained in respect of the Credit Agreement in a jurisdiction other than
the United States of America or (2) Committed Currencies is obtained in
respect of the Credit Agreement in a jurisdiction other than a
member-state of the European Union and the respective Loan Party pays such
judgment or (B) insofar as those provisions contemplate an alternative or
additional cause of action for a claim that may have merged with claims
covered by an earlier judgment; or
(iii) Section 7.02(h) of the Credit Agreement, to the extent it
relates to any waiver of an applicable statute of limitations; or
(iv) the enforceability of the right of setoff provided for in
Section 9.05 of the Credit Agreement (A) in respect of an interest under
the Credit Agreement purchased by a Lender pursuant to Section 2.15 or
9.07 of the Credit Agreement, to the extent the relevant purchase does not
give rise to a direct obligation of any Borrower to such Lender, or (B)
insofar as that right relates to setoff of unmatured obligations under the
Credit Agreement or of obligations owed to any Loan Party by an Affiliate
of a Lender or by an Affiliate of the Agent; or
(v) the enforceability of Section 2.06 or 9.14 of the Credit
Agreement to the extent that it constitutes a general disclaimer of the
obligations or liabilities of an Issuing Bank.
We are members of the Bar of the State of New York and express no
opinion as to the laws of any jurisdiction other than those of the laws of the
State of New York, the General Corporation Law of the State of Delaware and the
federal laws of the United States of America. Our opinions set forth in
paragraph numbers 1, 2 and 4(ii) above, as they apply to OCI, are based on our
review of the Connecticut Business Corporation Act as reported by 33 Conn. Gen.
Stat. ▇▇▇. ss. 33-600 et seq. (West 1997, 2004 supp.) to be in effect on the
date of this opinion letter.
This opinion is rendered solely to you by us as New York counsel for
the Loan Parties in connection with the transactions contemplated by the Credit
Agreement and the Notes. Each Lender (and its successors and permitted assigns)
may rely upon this opinion in connection with those transactions. This opinion
may not be relied upon in any other manner or for any other purpose, or
furnished or relied upon by any other person, without our prior written consent.
The information set forth herein is as of the date of this letter, and we
disclaim any undertaking to advise you of changes which thereafter may be
brought to our attention.
Very truly yours,
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
4
ANNEX I
Type and Date of
Name and Jurisdiction Certificate in Jurisdiction
of Incorporation of Incorporation
---------------------------------- -----------------------------
Omnicom Finance Inc. (Delaware) Good Standing - May 6, 2004
Omnicom Capital Inc. (Connecticut) Legal Existence - May 7, 2004
Omnicom Group Inc. (New York) Subsisting - May 7, 2004
EXHIBIT D-2 - FORM OF
OPINION OF ENGLISH
COUNSEL FOR OFP
To each of the Lenders parties to the Credit Agreement
referred to below and to Citibank, N.A. as Agent
Our Ref FJA/539576
May 2004
Dear Sirs
Omnicom Finance plc
1 Introduction
We have acted as special English lawyers for Omnicom Finance plc, a
company incorporated and existing under the laws of England and
Wales ("OFP"), in connection with its authorisation of the execution
and delivery of the following documents (together, the "Credit
Documents"):
1.1 the Amended and Restated Five Year Credit Agreement dated as of May
2004 made among Omnicom Finance Inc., Omnicom Capital Inc. and OFP
(collectively, the "Borrowers"), Omnicom Group Inc. as Guarantor,
the Initial Lenders named therein, the Initial Issuing Banks as
named therein, Citigroup Global Markets Inc. and ▇.▇. ▇▇▇▇▇▇
Securities Inc., as lead arrangers and book managers, ABN AMRO Bank
N.V. as syndication agent, ▇.▇. ▇▇▇▇▇▇ Chase Bank and HSBC Bank USA
as documentation agents, and Citibank, N.A. as Administrative Agent
for the Lenders (the "Credit Agreement"); and
1.2 the Notes of OFP, if any, to be delivered pursuant to Section
2.16(a) of the Credit Agreement.
We have been asked by OFP to give you this opinion for the purposes
of Section 3.01(h)(iv) of the Credit Agreement and we have taken
instructions in this regard solely from OFP. You should be aware
that our sole involvement with this transaction has been in giving
this opinion and we have not been involved in the negotiation of the
Credit Documents or in any other aspect of the transaction.
Terms defined in the Credit Agreement have the same meanings when
used in this opinion.
2 English law opinion
This opinion is limited to English law as applied by the English
courts as at the date of this letter and is given on the basis that
it will be governed by and construed in accordance with English law.
We have made no investigation of the laws of any jurisdiction other
than those of England and we do not express or imply any opinion as
to the laws of any jurisdiction other than those of England. We
express no opinion as to matters of fact.
3 Documents examined
For the purpose of this opinion we have examined the following
documents:
3.1 a copy of the Credit Agreement (including the Exhibits thereto)
bearing a signature on behalf of OFP which is stated therein to be
that of one of the persons identified in the certificate referred to
at paragraph 3.4 below as a Director of OFP;
3.2 a copy of the certificate given by OFP pursuant to Section 3.01 (h)
(ii) and (iii) of the Credit Agreement and having attached thereto,
inter alia:
3.2.1 copies of the certificate of incorporation and Memorandum and
Articles of Association of OFP, each certified as true, complete and
up-to-date as at the date hereof by a Director of OFP; and
3.3 a copy of the minutes of a meeting of the Board of Directors of OFP
held on [ ] May 2004, the resolutions set out in such minutes having
been certified as true, complete and still in force as at the date
hereof by a Director of OFP; and
3.4 a further certificate addressed to us from a director of OFP, a copy
of which is attached hereto (the "Certificate").
4 Enquiries made
For the purpose of giving this opinion, we have:
4.1 made an oral enquiry by telephone of the Central Registry of Winding
Up Petitions in respect of OFP on [ ] May 2004; and
4.2 arranged for a review of the copy documents relating to OFP
available from the Companies House website on [ ] May 2004.
Except for the documents listed in paragraph 3 above and the matters
referred to in this paragraph 4, we have not examined any contracts
or other documents entered into by or affecting any party to the
Credit Documents nor any corporate records of OFP and we have not
made any other enquiries or searches concerning OFP.
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5 Assumptions
In examining the documents referred to in paragraph 3 above, in
making the enquiries referred to in paragraph 4 above and in giving
this opinion we have assumed without further enquiry:
5.1 the genuineness of all signatures and seals on documents, the
conformity to the originals of all documents supplied to us as
copies and the authenticity of the originals of such documents;
5.2 that the information disclosed by our oral enquiry at the Central
Registry of Winding-up Petitions was then accurate and that such
enquiry did not fail to disclose any matters which it should have
disclosed and which are relevant for the purposes of this opinion
and since the time of such enquiry there has been no alteration in
the status or condition of OFP as represented by the Clerk at the
Registry;
5.3 that the file of records available for public inspection from the
website of Companies House concerning OFP was complete, accurate and
up-to-date at the time of the review referred to in 4.2 above and
that there has been no alteration in the status or condition of OFP
as represented thereby;
5.4 that OFP has not passed a voluntary winding-up resolution and that
no petition has been presented to or order made by a court for the
winding-up or dissolution of OFP or the appointment of an
administrator of OFP and that no receiver or administrator has been
appointed in respect of OFP or any of its assets which in any such
case has not been revealed by the enquiries referred to in paragraph
4 above;
5.5 (in relation to paragraph 6.7 only, if relevant) that each of the
parties to the Credit Documents (other than OFP) is in existence and
has full corporate capacity, right, power and authority to enter
into and to exercise its rights and perform its obligations under
the Credit Documents;
5.6 (in relation to paragraph 6.7 only, if relevant) that under the laws
of the State of New York, USA, each of the Credit Documents
constitutes valid, legally binding and enforceable obligations of
the parties thereto, including OFP;
5.7 that any copies certified and all documents dated earlier than the
date of this letter on which we have expressed reliance remain
accurate, complete and in full force and effect at the date of this
letter;
5.8 that there are no provisions of the laws of any applicable
jurisdiction outside England which would be contravened by the
execution and delivery of the Credit Documents and that, insofar as
any obligation under the Credit Documents is to be performed in any
jurisdiction outside England, its performance will not be illegal or
contrary to public policy by virtue of the laws of that
jurisdiction;
5.9 the accuracy of the statements contained in the Certificate; and
5.10 (as regards our opinions in paragraphs 6.5 and 6.6 below) that all
Advances made to OFP pursuant to the Credit Agreement will be made
by persons who are (i) authorised persons
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(within the meaning of the Financial Services and Markets Act 2000)
who have permission to accept deposits or to effect or carry out
contracts of insurance, or (ii) acting in the course of carrying on
a business consisting wholly or to a significant extent of lending
money, or (iii) otherwise described in paragraph 6(1) of the
Financial Services and Markets ▇▇▇ ▇▇▇▇ (Regulated Activities) Order
2001.
6 Opinion
Based upon and subject to the foregoing, and subject to the
qualifications and reservations mentioned below and to any matters
not disclosed to us, we are of the following opinion.
6.1 OFP (i) is duly incorporated and validly existing as a public
limited company under the laws of England and Wales; (ii) has the
power and authority to own its property and assets and to transact
the business in which it is engaged (as such property, assets and
business are described in the Certificate); and (iii) is not
required to be qualified as a "foreign corporation" in order to do
business within England and Wales.
6.2 The enquiry and review referred to in paragraph 4 above did not
reveal any appointment of, or resolution or petition to appoint, a
liquidator, administrator or administrative receiver of OFP, or that
OFP is delinquent in filing its statutory annual directors' report
and accounts, or any notification by the Registrar of Companies of
intention to strike OFP's name off the Register of Companies.
6.3 OFP has the corporate power to execute, deliver and perform the
terms and provisions of each of the Credit Documents to which it is
expressed to be a party and to borrow under the Credit Agreement and
has taken all necessary corporate action to authorise the execution,
delivery and performance by it of each of such Credit Documents and
borrowing by it under the Credit Agreement.
6.4 OFP has validly executed the Credit Agreement. When the Notes are
signed by one of the Directors of OFP, such Notes will have been
validly executed by OFP.
6.5 The execution, delivery and performance by OFP of the Credit
Documents to which it is expressed to be a party, the compliance by
it with the terms and provisions thereof and the borrowing by it
under the Credit Agreement will not (i) contravene any provision of
any law, statute, rule or regulation of England and Wales or (ii)
violate any provision of the memorandum and articles of association
of OFP as currently in force.
6.6 Under English law, no order, consent, approval, licence,
authorisation or validation of, or filing, recording or registration
with, or exemption by, any governmental or public body or authority
of or in England and Wales (except such as have been obtained or
made prior to the date hereof) is required to authorise, or is
required in connection with, (i) the execution, delivery and
performance by OFP of any Credit Document to which OFP is expressed
to be a party, (ii) the borrowing by OFP under the Credit Agreement
or (iii) the enforceability of any such Credit Document against OFP.
6.7 The English courts would recognize and give effect to the choice of
the laws of the State of New York, USA, as the governing law of the
Credit Documents.
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6.8 The submission to the jurisdiction of the courts of the State of New
York, USA, by OFP in the Credit Documents is within the corporate
powers of OFP and does not contravene any law of England.
6.9 A judgment rendered by a court in the United States has no direct
operation in England but may be enforceable by a claim or
counterclaim or be recognised by the English courts as a defence to
a claim or as conclusive of an issue in an action. For a judgment
rendered by a court in the United States to be enforced by the
English courts it would be necessary to prove to the satisfaction of
the English court that:-
(i) the United States court had jurisdiction; and
(ii) the judgment is final and conclusive on the merits; and
(iii) the judgment is for a debt or a fixed sum (not being a sum
payable in respect of taxes or other charges of a like nature
or in respect of a fine or other penalty).
For a defendant to such a claim to have a good defence to a claim or
counterclaim to enforce such a judgment, it would be necessary for
him to prove that:-
(1) the judgment was obtained by fraud; or
(2) the judgment is contrary to English public policy; or
(3) the judgment involves the enforcement of foreign public, penal
or revenue laws; or
(4) enforcement would be contrary to section 5 of the Protection
of Trading ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (which prohibits the enforcement
of (a) judgments for multiple damages; (b) judgments based on
a provision or rule of law specified by the Secretary of State
as being concerned with the prohibition or regulation of
anti-competitive arrangements or with the promotion of
competition; and (c) a judgment on a claim for a contribution
in respect of damages awarded under (a) or (b)); or
(5) the judgment was obtained in a manner opposed to the rules of
natural justice; or
(6) the judgment involves a matter previously determined by an
English court; or
(7) Recognition of the judgment is denied under section 32 of the
Civil Judgment and Jurisdiction ▇▇▇ ▇▇▇▇. Under section 32 a
judgment in a United States action shall not be recognised by
the English Courts if :
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(a) the United States action is brought in breach of a
valid agreement under which the dispute in
question was to be settled otherwise than by
proceedings in the United States; and
(b) the United States action was not brought by or
with the agreement of, the person against whom the
judgment was given; and
(c) that person did not counterclaim in the United
States action or otherwise submit to the
jurisdiction of the United States court;
Except that section 32 does not apply where the agreement
under which the dispute in question was to be settled is
illegal, void, unenforceable or incapable of being performed
for reasons not attributable to the fault of the party
bringing the action.
The question of whether enforcement of a judgment is contrary to
English public policy (see (2) above) depends on the circumstances
of the transaction as a whole and the subsequent conduct of the
litigation in the United States and English proceedings. Solely on
the basis of our examination of the documents referred to in
paragraphs 3.1 to 3.3 (inclusive) above, we are not aware of any
reason why enforcement of a judgment to pay a sum of money due under
the Credit Agreement would be contrary to English public policy as
at the date of this letter.
7 Qualifications and reservations
Our opinion is subject to the following qualifications and
reservations.
7.1 We express no opinion on the effectiveness of any of the provisions
of the Credit Documents, since the Credit Documents are governed by
New York law.
7.2 The obligations of OFP under the Credit Documents will be subject to
any laws from time to time in effect relating to insolvency,
administration, bankruptcy, liquidation, reorganisation, moratorium
or similar laws affecting creditors' rights generally and we express
no opinion on such laws.
7.3 The enquiry at the Central Registry of Winding-up Petitions referred
to in paragraph 4.1 above relates only to a compulsory winding-up
and is not conclusively capable of revealing whether or not a
winding-up petition in respect of a compulsory winding-up has been
presented since details of the petition may not have been entered on
the records of the Central Registry of Winding-up Petitions
immediately or, in the case of a petition presented to a County
Court, may not have been notified to the Central Registry and
entered on such records at all, and the response to an enquiry only
relates to the period of six months prior to the date when the
enquiry was made.
7.4 The search of the Companies House website referred to in paragraph
4.2 above is not conclusively capable of revealing whether or not
certain events have occurred, including
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the commencement of winding up or the making of an administration
order or the appointment of a receiver, administrative receiver,
administrator or liquidator, as notice of these matters may not be
filed with Companies House immediately and, when filed, may not be
available from such website immediately.
7.5 The choice of a particular law to govern an agreement or document
would not be recognised or upheld by the English Courts if the
choice of law was not bona fide and legal or if there were reasons
for avoiding the choice of law on the grounds of public policy. The
choice of a particular law would not be upheld, for example, if it
was made with the intention of evading the law of the jurisdiction
with which the contract had its most substantial connection and
which, in the absence of the chosen law, would have invalidated the
contract or been inconsistent with it. We have not made any
investigation into the bona fides of the parties to the Credit
Documents; however we are not aware of any reason for an English
Court to find that the choice of New York law to govern the Credit
Documents is not bona fide or not legal, nor are we aware of any
English public policy that would be violated by the enforcement of
the Credit Documents in accordance with their respective terms.
7.6 We have not considered the particular circumstances of any party to
the Credit Documents (save OFP to the extent expressly stated
herein) or the effect of such particular circumstances on the Credit
Documents or the transactions contemplated thereby.
7.7 English courts can give judgments in a currency other than sterling
if, subject to the terms of the contract, that currency is the
currency which most fairly expresses the plaintiff's loss.
7.8 If OFP is required to deposit cash collateral into the L/C Cash
Deposit Account in accordance with Section 6.02 of the Credit
Agreement, then it may be necessary or advisable to arrange for a
charge to be registered at Companies House to note the security
interest in such funds.
8 Reliance
This opinion may be relied on solely by the addressees and may not
be regarded as addressed to or relied on by any other person (save
the addressees' successors and assigns) without our prior written
consent. It is strictly limited to the matters stated herein and
does not extend to, and is not to be read as extending by
implication to, any other matter in connection with the Credit
Documents.
Yours faithfully
Macfarlanes
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