Exhibit 99.1
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OMNICOM FINANCE INC.,
OMNICOM CAPITAL INC.
and
OMNICOM FINANCE PLC,
as Borrowers
364-DAY CREDIT AGREEMENT
dated as of April 25, 2002
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$1,580,000,000
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CITIBANK, N.A.,
as Administrative Agent
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SALOMON SMITH BARNEY INC.,
as Lead Arranger
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THE BANK OF NOVA SCOTIA,
as Documentation Agent
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JPMORGAN CHASE BANK
FLEET NATIONAL BANK
and
SANPAOLO IMI S.p.A.,
as Syndication Agents
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TABLE OF CONTENTS(1)
Section Page
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Section 1. Definitions and Principles of Construction.....................1
1.01 Defined Terms...............................................1
1.02 Principles of Construction.................................11
Section 2. Amount and Terms of Loans.....................................11
2.01 The Loans..................................................11
2.02 Minimum Amount of Each Borrowing...........................11
2.03 Notice of Borrowing........................................11
2.04 Disbursement of Funds......................................12
2.05 Notes......................................................12
2.06 Conversions................................................13
2.07 Pro Rata Borrowings........................................13
2.08 Interest...................................................13
2.09 Interest Periods...........................................14
2.10 Increased Costs, Illegality, etc...........................14
2.11 Compensation...............................................16
2.12 Change of Applicable Lending Office........................17
Section 3. Fees; Termination or Reduction of Commitments; Commitment
Termination Date; Extension of Commitments; Increase
of Commitments..............................................17
3.01 Fees.......................................................17
3.02 Termination or Reduction of Commitments....................17
3.03 Commitment Termination Date; Extension of Commitments......18
3.04 Increase of Commitments....................................19
3.05 Term Loan Election.........................................20
Section 4. Prepayments; Payments.........................................21
4.01 Voluntary Prepayments......................................21
4.02 Method and Place of Payment................................21
4.03 Net Payments...............................................22
Section 5. Conditions Precedent..........................................24
5.01 Effectiveness..............................................24
5.02 Borrowings.................................................25
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(1) This Table of Contents is provided for convenience only and is not a part
of the attached Credit Agreement.
i
Section 6. Representations, Warranties and Agreements....................26
6.01 Corporate Status...........................................26
6.02 Corporate Power and Authority..............................27
6.03 No Violation...............................................27
6.04 Governmental Approvals.....................................27
6.05 Litigation.................................................27
6.06 True and Complete Disclosure...............................27
6.07 Use of Proceeds; Margin Regulations........................28
6.08 Tax Returns and Payments...................................28
6.09 Compliance with ERISA......................................28
6.10 Compliance with Statutes, etc..............................29
6.11 Investment Company Act.....................................29
6.12 Public Utility Holding Company Act.........................29
Section 7. Affirmative Covenants.........................................29
7.01 Information Covenants......................................29
7.02 Books, Records and Inspections.............................30
7.03 Corporate Franchises.......................................30
7.04 Compliance with Statutes, etc..............................30
7.05 ERISA......................................................30
7.06 End of Fiscal Years; Fiscal Quarters.......................31
Section 8. Negative Covenants............................................31
8.01 Liens......................................................31
8.02 Consolidation, Merger, Sale of Assets, etc.................31
8.03 Leases.....................................................32
8.04 Indebtedness...............................................32
8.05 Advances, Investments and Loans............................32
8.06 Transactions with Affiliates...............................32
8.07 Limitation on Restrictions on Subsidiary Dividends and
Other Distributions......................................32
8.08 Business...................................................33
8.09 Dividends..................................................33
Section 9. Event of Default..............................................33
9.01 Payments...................................................33
9.02 Representations, etc.......................................33
9.03 Covenants..................................................33
9.04 Default Under Other Agreements.............................33
9.05 Bankruptcy, etc............................................34
9.06 ERISA......................................................34
9.07 Guaranty...................................................34
9.08 Ownership of the Borrowers.................................35
9.09 Ownership of the Guarantor.................................35
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9.10 Judgments..................................................35
Section 10. The Administrative Agent; Agents..............................35
10.01 Appointment................................................35
10.02 Nature of Duties...........................................36
10.03 Lack of Reliance on the Administrative Agent...............36
10.04 Certain Rights of the Administrative Agent.................36
10.05 Reliance...................................................37
10.06 Indemnification............................................37
10.07 The Administrative Agent in its Individual Capacity........37
10.08 Holders....................................................37
10.09 Resignation By the Administrative Agent....................37
10.10 Lead Arranger, Documentation Agent and Syndication Agents..38
10.11 Replacement................................................38
Section 11. Miscellaneous.................................................38
11.01 Payment of Expenses, etc...................................38
11.02 Right of Setoff............................................39
11.03 Notices....................................................39
11.04 Benefit of Agreement.......................................39
11.05 No Waiver; Remedies Cumulative.............................41
11.06 Payments Pro Rata..........................................42
11.07 Calculations; Computations.................................42
11.08 Governing Law; Submission to Jurisdiction; Venue...........42
11.09 Payment Denominations......................................43
11.10 Counterparts...............................................43
11.11 Headings Descriptive.......................................44
11.12 Amendment or Waiver........................................44
11.13 Survival...................................................44
11.14 Domicile of Loans..........................................44
11.15 Limitation on Additional Amounts, etc......................44
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SCHEDULE I - Schedule of Commitments
EXHIBIT A-1 - Form of Notice of Borrowing
EXHIBIT A-2 - Form of Notice of Election of Term Option
EXHIBIT B - Form of Note
EXHIBIT C-1 - Form of Opinion of Counsel (New York) - OFI, OCI and Guarantor
EXHIBIT C-2 - Form of Opinion of Counsel (New York) - Banks
EXHIBIT C-3 - Form of Opinion of Counsel (New York) - OFP
EXHIBIT C-4 - Form of Opinion of Counsel (United Kingdom) - OFP
EXHIBIT D-1 - Form of Officers' Certificate - OFI
EXHIBIT D-2 - Form of Officers' Certificate - OCI
EXHIBIT D-3 - Form of Officers' Certificate - OFP
EXHIBIT D-4 - Form of Officers' Certificate - Guarantor
EXHIBIT E - Form of Guaranty
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364-DAY CREDIT AGREEMENT, dated as of April 25, 2002 among OMNICOM FINANCE
INC., a corporation organized and existing under the laws of Delaware ("OFI");
OMNICOM CAPITAL INC., a corporation organized and existing under the laws of
Connecticut ("OCI"); OMNICOM FINANCE PLC, a company organized and existing under
the laws of England and Wales ("OFP", and, together with OFI and OCI,
individually, a "Borrower" and collectively the "Borrowers"); the financial
institutions listed in Schedule I (each a "Bank" and, collectively, the
"Banks"); and CITIBANK, N.A., acting in the manner and to the extent described
in Section 11 (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrowers have requested the Banks, and the Banks have
agreed, to extend credit to the Borrowers on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and subject to the terms and conditions hereof, the parties hereto hereby agree
as follows:
Section 1. Definitions and Principles of Construction.
1.01 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):
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 10.09.
"Administrative Agent's Account" shall mean such account at the relevant
Payment Office as the Administrative Agent may designate in writing to the other
parties hereto.
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" shall mean, with respect to any Person, any other Person
(other than an individual) directly or indirectly controlling, controlled by, or
under direct or indirect common control with, such Person; provided, however,
that for purposes of Section 8.06, an Affiliate of a Borrower shall include any
Person that directly or indirectly owns more than 5% of such Borrower and any
officer or director of such Borrower or any 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 other Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement" shall mean this 364-day Credit Agreement, as modified,
supplemented or amended from time to time.
"Applicable Lending Office" shall mean, with respect to each Bank, (i)
such Bank's Base Rate Lending Office in the case of a Base Rate Loan, and (ii)
such Bank's Eurocurrency Lending Office in the case of a Eurocurrency Rate Loan.
"Applicable Margin" for Eurocurrency Rate Loans and "Applicable Facility
Fee Rate" at any time shall mean the respective rates per annum set forth in the
table below opposite the applicable Rating Level at such time:
Applicable Margin Applicable Margin
for for
Eurocurrency Term Loans
Rate Loans that are Applicable
(other than Eurocurrency Facility
Rating Level Term Loans) Rate Loans Fee Rate
------------ ----------- ---------- --------
Rating Level 1 0.19% 0.45% 0.085%
Rating Level 2 0.275% 0.65% 0.10%
Rating Level 3 0.34% 0.75% 0.11%
Rating Level 4 0.425% 0.90% 0.125%
Rating Level 5 0.60% 1.25% 0.15%
provided that, if the aggregate principal amount outstanding of the Eurocurrency
Rate Loans (other than Term Loans) on any day exceeds 50% of the Total
Commitment on such day, the Applicable Margin for Eurocurrency Rate Loans (other
than Term Loans) for that day shall be 0.05% higher than the rate set forth
above, when the applicable Rating Level is Rating Level 1, 0.075% higher than
the rate set forth above, when the applicable Rating Level is Rating Level 2,
0.10% higher than the rate set forth above when the applicable Rating Level is
Rating Level 3 or Rating Level 4, and 0.25% higher than the rate set forth
above, when the applicable Rating Level is Rating Level 5, and provided,
further, that, if the Moody's Rating or the S&P Rating relates to the Guarantor
Subordinated Debt, then the respective rates set forth above shall be determined
by reference to the Rating Level which is one level higher than the Rating Level
which would otherwise apply to such Guarantor Subordinated Debt (for the purpose
of which determination, Rating Level 1 shall be the highest rating).
"Bank" and "Banks" shall have the meaning provided in the first paragraph
of this Agreement.
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
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"Base Rate" shall mean, with respect to any Base Rate Loan, for any day,
the higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% or (b) the
rate of interest publicly announced by Citibank in New York, New York, from time
to time, as Citibank's base rate (or, if Citibank ceases to be the
Administrative Agent, the rate of interest publicly announced by the successor
Administrative Agent as its prime lending rate in New York, New York, from time
to time). Each change in any interest rate provided for herein as the basis for
determining the Base Rate shall be taken into account for that purpose with
effect at the time of such change.
"Base Rate Lending Office" shall mean, with respect to each Bank, the
office of such Bank specified as such in the Administrative Questionnaire.
"Base Rate Loan" shall mean any Loan that bears interest based upon the
Base Rate.
"Borrower" and "Borrowers" shall mean, individually or collectively, as
the case may be, each of OFI, OFP and OCI.
"Borrowing" shall mean the borrowing of Loans of one Type from all the
Banks on a given date (or the conversion of such Loan or Loans of a Bank or
Banks on a given date).
"Business Day" shall mean any day (a) on which commercial banks are not
authorized or required to close in New York City and (b) if such day relates to
a Borrowing of, a payment or prepayment of principal of or interest on, or the
Interest Period for, a Eurocurrency Rate Loan or a notice by any Borrower with
respect to any such Borrowing, payment, prepayment or Interest Period, that is
also a day on which dealings in deposits denominated in Dollars are carried out
in the London interbank market.
"Citibank" shall mean Citibank, N.A. and its successors.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Commercial Paper" shall mean commercial paper of any Borrower which is
not backed by the Letter of Credit referred to in the Amended and Restated
Credit Agreement dated as of May 10, 1996 amended and restated as of February
20, 1998 and as subsequently amended, among OFI, OFP, ABN Amro Bank N.V., New
York Branch, as Administrative Agent and Co-Arranger, Chase Securities, Inc., as
Syndication Agent, ABN Amro Bank, N.V., New York Branch and Chase Manhattan
Bank, as Managing Banks, and the financial institutions identified therein as
the Banks, as lenders.
"Commitment" shall mean, for each Bank, the amount set forth opposite such
Bank's name in Schedule I hereto, as the same may be (x) reduced from time to
time pursuant to Section 3.02 and/or Section 9, (y) increased pursuant to
Section 3.04 and/or (z) adjusted from time to time as a result of assignments to
or from such Bank pursuant to Section 11.04(b).
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"Commitment Termination Date" shall have the meaning provided in Section
3.03(a).
"Contingent Obligation" shall mean, as to any Person, any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the holder
of such primary obligation against loss in respect thereof; provided, however,
that the term "Contingent Obligation" shall not include (x) endorsements of
instruments for deposit or collection in the ordinary course of business, (y)
guarantees of customary indemnification obligations in connection with
acquisition agreements and (z) guarantees of earn-out payment obligations in
connection with the purchase of property or services to the extent that they are
still contingent. The amount of any Contingent Obligation shall be deemed to be
an amount equal to the stated or determinable amount of the primary obligation
in respect of which such Contingent Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Credit Documents" shall mean this Agreement, each Note and the Guaranty
as modified, supplemented or amended from time to time.
"date hereof" and "date of this Agreement" shall mean April 25, 2002.
"Default" shall mean any event, act or condition which, with notice or
lapse of time, or both, would constitute an Event of Default.
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement, and to any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean any person (as defined in Section 3(9) of
ERISA) which together with OFI or any of its Subsidiaries or together with OCI
or any of its Subsidiaries would be member of the same "controlled group" within
the meaning of Section 414 (b), (c), (m) and (o) of the Code.
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"Eurocurrency Base Rate" shall mean, with respect to the Interest Period
for a Eurocurrency Rate Loan, (a) the rate per annum appearing on Page 3750 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 Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to Dollar deposits in the
London interbank market) as of 11:00 a.m. (London time) on the date two Business
Days prior to the first day of the Interest Period for such Loan as the London
Interbank Offered Rate (as defined below) for deposits denominated in Dollars
having a term comparable to such Interest Period and (if applicable) in an
amount of $1,000,000 or more, or (b) if no such rate appears on such page or if
such page shall cease to be publicly available or if the information appearing
on such page, in the reasonable judgment of the Administrative Agent, shall
cease accurately to reflect the rate offered by leading banks in the London
interbank market (the "London Interbank Offered Rate") (as reported by any
publicly available source of similar market data selected by the Administrative
Agent that, in the reasonable judgment of the Administrative Agent, accurately
reflects the London Interbank Offered Rate), the average of the offered
quotations to first-class banks in the London interbank market by each of the
Reference Banks for deposits denominated in Dollars in amounts comparable to the
outstanding principal amount of the Eurocurrency Rate Loan for which an interest
rate is then being determined with maturities comparable to the Interest Period
to be applicable to such Eurocurrency Rate Loan, determined as of 11:00 a.m.
(London time) on the date which is two Business Days prior to the commencement
of such Interest Period; provided that, if any Reference Bank fails to provide
the Administrative Agent with its aforesaid quotation, the Eurocurrency Base
Rate shall be based on the quotation or quotations provided to the
Administrative Agent by the other Reference Bank or Reference Banks (and rounded
upward, if necessary, to the nearest whole multiple of 1/16 of 1%).
"Eurocurrency Lending Office" shall mean, for each Bank, the office of
such Bank (or of an Affiliate of such Bank) specified as such in the
Administrative Questionnaire.
"Eurocurrency Rate" shall mean, with respect to the Interest Period for a
Eurocurrency Rate Loan, the rate per annum (rounded upward if necessary to the
next whole multiple of 1/100 of 1%) determined by dividing (i) the Eurocurrency
Base Rate applicable to such Interest Period by (ii) a percentage equal to 100%
minus the then stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves) applicable to any member bank of the Federal Reserve System in respect
of Eurocurrency liabilities (as defined in Regulation D) with comparable
maturities.
"Eurocurrency Rate Loan" shall mean any Loan that bears interest at a rate
based on the rates referred to in the definition of "Eurodollar Base Rate" in
this Section 1.01.
"Event of Default" shall have the meaning provided in Section 9.
"Existing Commitment Termination Date" shall have the meaning provided in
Section 3.03(b).
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"Existing Indebtedness" shall have the meaning provided in Section 8.04.
"Facility Fee" shall have the meaning provided in Section 3.01(a).
"Federal Funds Rate" shall mean a fluctuating interest rate per annum,
equal for each day 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 which is a Business
Day, the average of the quotations for such day on such transactions received by
the Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 3.01.
"Final Maturity Date" shall have the meaning provided in Section 3.05.
"Foreign Subsidiary" shall mean any Subsidiary which is 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.
"Governmental Authority" shall mean the United States or any other nation,
or any political subdivision of any thereof (whether state or local), and any
government, agency, authority, instrumentality, regulatory body, court, central
bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to government.
"Guarantor" shall mean Omnicom Group Inc., a corporation organized and
existing under the laws of New York.
"Guarantor Debt" shall mean Guarantor Senior Debt and Guarantor
Subordinated Debt.
"Guarantor Senior Debt" shall mean (i) non-credit enhanced long-term
senior unsecured debt of the Guarantor or (ii) non-credit enhanced long-term
senior unsecured debt of a Subsidiary of the Guarantor guaranteed by the
Guarantor.
"Guarantor Subordinated Debt" shall mean Subordinated Indebtedness (as
defined in the Guaranty) of the Guarantor that is long-term, unsecured and
non-credit enhanced, including (without limitation) non-credit enhanced
long-term subordinated unsecured debt of a Subsidiary of the Guarantor
guaranteed by the Guarantor, which guaranty qualifies as Subordinated
Indebtedness (as defined in the Guaranty).
"Guaranty" shall have the meaning provided in Section 5.01(d).
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"Indebtedness" shall mean, as to any Person, without duplication, (i) all
indebtedness (including principal, interest, fees and charges) of such Person
for borrowed money (whether by loan or issuance and sale of debt securities or
otherwise) or 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), (ii) the face
amount of all letters of credit issued for the account of such Person and all
drafts drawn thereunder (other than letters of credit issued in support of
accrued expenses and accounts payable incurred in the ordinary course of
business), (iii) all liabilities secured by any Lien on any property owned by
such Person, whether or not such liabilities have been assumed by such Person,
(iv) the aggregate amount required to be capitalized under leases under which
such Person is the lessee and (v) all Contingent Obligations of such Person.
"Interest Determination Date" shall mean, with respect to any Eurocurrency
Rate Loan, the second Business Day prior to the commencement of the Interest
Period relating to such Eurocurrency Rate Loan.
"Interest Period" shall have the meanings provided in Sections 2.09.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority or
other security agreement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any other
similar recording or notice statute, and any capital lease, but excluding any
operating lease even if accompanied by a precautionary filing under the UCC).
"Loan" shall have the meaning provided in Section 2.01(a).
"London Interbank Offered Rate" shall have the meaning as provided in the
definition of "Eurocurrency Base Rate".
"Margin Stock" shall have the meaning provided in Regulation U of the
Board of Governors of the Federal Reserve System.
"Material Subsidiary" shall mean a Subsidiary of the Guarantor (other than
a Borrower) that alone or together with its Subsidiaries (i) as of the end of
the most recently completed fiscal year of the Guarantor accounted, in terms of
investments therein or advances thereto by the Guarantor and its Subsidiaries,
for more than 10% of the consolidated assets of the Guarantor and its
Subsidiaries, (ii) as of the end of such fiscal year owned more than 10% of the
consolidated assets of the Guarantor and its Subsidiaries, or (iii) accounted in
such fiscal year for more than 10% of the consolidated income of the Guarantor
and its Subsidiaries from continuing operations before income taxes,
extraordinary items and cumulative effect of a change in accounting principles,
all as set forth in the consolidated financial statements of the Guarantor for
such fiscal year.
"Moody's" shall mean Moody's Investors Service, Inc., or any successor
thereto.
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"Moody's Rating" shall mean, as at any time, (i) the rating then currently
in effect by Moody's relating to the Guarantor Senior Debt and (ii) if there is
no rating then currently in effect by Moody's relating to the Guarantor Senior
Debt, the rating then currently in effect by Moody's relating to the Guarantor
Subordinated Debt and (iii) if there is no rating then currently in effect
relating to the Guarantor Debt, the corporate credit rating (if any) then
currently in effect by Moody's.
"Note" shall have the meaning provided in Section 2.05(a).
"Notice of Borrowing" shall have the meaning provided in Section 2.03.
"Notice of Conversion" shall have the meaning provided in Section 2.06.
"Notice of Election of Term Option" shall have the meaning provided in
Section 3.05.
"Notice Office" shall mean the office of the Administrative Agent located
at Bank Loan Syndications, 2 Penn's Way, New Castle, Delaware 19720, or such
other office as the Administrative Agent may hereafter designate in writing as
such to the other parties hereto.
"Obligations" shall mean all amounts owing to the Administrative Agent or
any Bank pursuant to the terms of this Agreement or any other Credit Document.
"OCI" shall have the meaning provided in the first paragraph of this
Agreement.
"OFI" shall have the meaning provided in the first paragraph of this
Agreement.
"OFP" shall have the meaning provided in the first paragraph of this
Agreement.
"Payment Office" shall mean the office designated by the Administrative
Agent as such to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA or any successor thereto.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
"Plan" shall mean any multiemployer plan or single-employer plan as
defined in Section 4001 of ERISA, which is maintained, or at any time during the
five calendar years preceding the date hereof was maintained, for employees of
OFI or by a Subsidiary of OFI or an ERISA Affiliate.
-8-
"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.
"Rating Level 1" shall mean (a) no Specified Event of Default has occurred
and is continuing and (b) the Moody's Rating is greater than or equal to Al or
the S&P Rating is greater than or equal to A+.
"Rating Level 2" shall mean (a) no Specified Event of Default has occurred
and is continuing, (b) the Moody's Rating is A2 or the S&P Rating is A and (c)
Rating Level 1 is not in effect.
"Rating Level 3" shall mean (a) no Specified Event of Default has occurred
and is continuing, (b) the Moody's Rating is A3 or the S&P Rating is A- and (c)
neither Rating Level 1 nor Rating Level 2 is in effect.
"Rating Level 4" shall mean (a) no Specified Event of Default has occurred
and is continuing, (b) the Moody's Rating is Baa1 or the S&P Rating is BBB+ and
(c) none of Rating Level 1, Rating Level 2 or Rating Level 3 is in effect.
"Rating Level 5" shall mean none of Rating Level 1, Rating Level 2, Rating
Level 3 or Rating Level 4 is in effect.
"Reference Banks" shall mean Citibank, JPMorgan Chase Bank, The Bank of
Nova Scotia and Sanpaolo IMI S.p.A.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
"Relevant Institution" shall have the meaning provided in Section 11.02.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan as to which the 30-day notice requirement has not
been waived by the PBGC.
"Required Banks" shall mean, at any time, Banks holding at least 66-2/3%
(or more than 50% in the case of Section 10) of the Total Commitment or, if the
Total Commitment has been terminated, Banks holding at least 66-2/3% (or more
than 50% in the case of Section 10) of the then aggregate unpaid principal
amount of the Obligations.
"S&P" shall mean Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor thereto.
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"S&P Rating" shall mean, as at any time, (i) the rating then currently in
effect by S&P relating to the Guarantor Senior Debt and (ii) if there is no
rating then currently in effect by S&P relating to the Guarantor Senior Debt,
the rating then currently in effect by S&P relating to the Guarantor
Subordinated Debt and (iii) if there is no rating then currently in effect by
S&P relating to the Guarantor Debt, the corporate credit rating (if any) then
currently in effect by S&P.
"SEC" shall have the meaning provided in Section 7.01(c).
"Specified Event of Default" shall mean (a) an Event of Default described
in any of Sections 9.01(i), 9.01(ii) (in respect of interest only), 9.04 or
9.10, (b) any default by the Guarantor in the due performance or observance by
it of clauses (m)(vi), (o) or (p) of Section 7 of the Guaranty, which default
(x) if it occurs during any of the first three fiscal quarters of the Guarantor,
shall be continuing from and after the date 30 days after the last day of the
fiscal quarter in which such default occurs and (y) if it occurs during the
fourth fiscal quarter of the Guarantor, shall be continuing from and after the
date 60 days after the last day of the fiscal quarter in which such default
occurs, (c) the Guaranty shall cease to be in full force and effect, or (d) the
Guarantor shall deny or disaffirm the Guarantor's obligations under the
Guaranty.
"Subsidiary" shall mean, as to any Person (the "Relevant Person"), any
other Persons whose financial condition and results are (or should, under U.S.
generally accepted accounting principles, be) consolidated into the financial
statements of the Relevant Person.
"Taxes" shall have the meaning provided in Section 4.03.
"Term Loan" shall have the meaning provided in Section 3.05.
"Term Note" shall have the meaning provided in Section 3.05.
"Total Commitment" shall mean, at any time, the sum of the Commitments of
each of the Banks at such time.
"Treaty Lender" shall have the meaning provided in Section 4.03(c).
"Type" shall mean any type of Loan determined with respect to the interest
option applicable thereto, i.e., a Base Rate Loan or a Eurocurrency Rate Loan.
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount, if any, by
which the present value of the accrued benefits under the Plan as of the close
of its most recent plan year exceeds the fair market value of the assets
allocable thereto, determined in accordance with Section 412 of the Code.
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"United States" and "U.S." shall each mean the United States of America.
1.02 Principles of Construction. (a) All references to sections, schedules
and exhibits are to sections, schedules and exhibits in or to this Agreement
unless otherwise specified. The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
(b) All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting principles in the
United States in conformity with those used in the preparation of the financial
statements referred to in Section 6(e) of the Guaranty.
Section 2. Amount and Terms of Loans.
2.01 The Loans. (a) Subject to and upon the terms and conditions set forth
herein, each Bank with a Commitment severally agrees, at any time commencing on
the date hereof to but not including the Commitment Termination Date, to make
loans (each, a "Loan" and collectively, as the context requires, the "Loans") to
each Borrower in Dollars, which Loans (i) shall, at the option of such Borrower,
be Base Rate Loans or Eurocurrency Rate Loans, provided that, except as
otherwise specifically provided in Section 2.10(b), all Loans comprising the
same Borrowing shall at all times be of the same Type, and (ii) may be repaid,
prepaid and reborrowed in accordance with the provisions hereof; provided,
however, that the aggregate principal amount of Loans outstanding from any Bank
shall at no time exceed (after giving effect to the use of the proceeds of any
Loan then being made) an amount equal to the Commitment of such Bank at such
time. More than one Borrowing may occur on the same date.
(b) Anything in this Section 2.01 to the contrary notwithstanding, the
aggregate unpaid principal amount of all Loans outstanding at the same time
shall not exceed the Total Commitment at such time.
2.02 Minimum Amount of Each Borrowing. The aggregate principal amount of
each Borrowing hereunder shall be not less than $10,000,000 or a larger whole
multiple of $1,000,000 for each such Loan, except as required by Section
2.10(b). Borrowings of Loans of different Types or, in the case of Eurocurrency
Rate Loans, having different Interest Periods, at the same time hereunder shall
be deemed separate Borrowings.
2.03 Notice of Borrowing. Whenever any Borrower desires to make a
Borrowing hereunder, it shall give the Administrative Agent notice thereof at
its Notice Office by noon (New York time) on the date three Business Days prior
to each Eurocurrency Rate Loan and by noon (New York time) on the date of each
Base Rate Loan. Each such notice (each a "Notice of Borrowing") shall be in the
form of Exhibit A-1, appropriately completed to specify the aggregate principal
amount of the Loans to be made pursuant to such Borrowing, the date of such
Borrowing (which shall be a Business Day), whether the Loans being made pursuant
to such Borrowing are to be maintained as Base Rate Loans or Eurocurrency Rate
Loans and, in the
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case of Eurocurrency Rate Loans, the Interest Period to be applicable thereto.
The Administrative Agent shall promptly give each Bank notice of such proposed
Borrowing, of such Bank's proportionate share thereof and of the other matters
required by the immediately preceding sentence to be specified in the Notice of
Borrowing.
2.04 Disbursement of Funds. No later than 2:00 p.m. (New York time) on the
date specified in each Notice of Borrowing for Base Rate Loans and noon (New
York time) on the date specified in each Notice of Borrowing for Eurocurrency
Rate Loans, each Bank will make available, through such Bank's Applicable
Lending Office, its pro rata portion of each Borrowing requested to be made on
such date by any Borrower under Section 2.01, in immediately available funds at
the Payment Office of the Administrative Agent, and the Administrative Agent
will make available to such Borrower at its Payment Office the aggregate of the
amounts so made available by the Banks in immediately available funds. Unless
the Administrative Agent shall have been notified by any Bank prior to the date
of Borrowing that such Bank does not intend to make available to the
Administrative Agent such Bank's portion of any Borrowing to be made on such
date, the Administrative Agent may assume that such Bank has made such amount
available to the Administrative Agent on such date of Borrowing and the
Administrative Agent may, in reliance upon such assumption, make available to
the relevant Borrower a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such Bank, the
Administrative Agent shall be entitled to recover such corresponding amount from
such Bank on demand. If such Bank does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify the relevant Borrower and such Borrower shall
immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover on demand from such Bank
or the relevant Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to such Borrower until the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (i) if recovered from such Bank, the cost to the Administrative
Agent of funding the relevant amount and (ii) if recovered from such Borrower,
the then applicable rate for Base Rate Loans or Eurocurrency Rate Loans, as the
case may be. Nothing in this Section 2.04 shall be deemed to release any Bank
from its obligation to make Loans hereunder or to prejudice any rights which the
relevant Borrower may have against any Bank as a result of any failure by such
Bank to make Loans hereunder.
2.05 Notes. (a) Upon request of any Bank through the Administrative Agent,
the obligation of each Borrower to pay the principal of, and interest on, the
Loans made by such Bank to such Borrower shall be evidenced by a promissory note
duly executed and delivered by such Borrower substantially in the form of
Exhibit B with blanks appropriately completed in conformity herewith (each, a
"Note" and, collectively, the "Notes").
(b) The Note (if any) issued to each Bank shall (i) be payable to such
Bank and be dated the date of this Agreement, (ii) mature, with respect to each
Loan evidenced thereby, in the case of a Eurocurrency Rate Loan, on the last day
of its Interest Period, and in the
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case of a Base Rate Loan, on the Commitment Termination Date, (iii) bear
interest as provided in the appropriate clause of Section 2.08 in respect of the
Base Rate Loans and Eurocurrency Rate Loans, as the case may be, evidenced
thereby and (iv) be entitled to the benefits of this Agreement and the Guaranty.
(c) Each Bank will note on its internal records the amount of each Loan
made by it and each payment in respect thereof and will prior to any transfer of
its Note endorse on the reverse side thereof the outstanding principal amount of
Loans evidenced thereby. Failure to make any such notation shall not affect the
relevant Borrower's obligations in respect of such Loans.
2.06 Conversions. Each Borrower shall have the option to convert on any
Business Day all or a portion equal to at least $5,000,000 of the outstanding
principal amount of the Base Rate Loans made to such Borrower pursuant to one or
more Borrowings into a Borrowing of Eurocurrency Rate Loans, provided that (i)
no Default or Event of Default is in existence on the date of the conversion and
(ii) no conversion pursuant to this Section 2.06 shall result in a greater
number of Borrowings than is permitted under Section 2.01. Each such conversion
shall be effected by the relevant Borrower by giving the Administrative Agent at
its Notice Office prior to noon (New York time) at least three Business Days'
prior notice (a "Notice of Conversion") specifying the Base Rate Loans to be so
converted and the Interest Period to be applicable thereto. The Administrative
Agent shall give each Bank prompt notice of any such proposed conversion
affecting any of its Base Rate Loans.
2.07 Pro Rata Borrowings. All Borrowings under this Agreement shall be
incurred from the Banks pro rata on the basis of their Commitments. It is
understood that no Bank shall be responsible for any default by any other Bank
of its obligation to make Loans hereunder and that each Bank shall be obligated
to make the Loans provided to be made by it hereunder regardless of the failure
of any other Bank to make its Loans hereunder.
2.08 Interest. (a) Each Borrower agrees to pay interest in respect of the
unpaid principal amount of each Base Rate Loan made to such Borrower from the
date the proceeds thereof are made available to such Borrower until the maturity
thereof (whether by acceleration or otherwise) at a rate per annum which shall
be the Base Rate in effect from time to time.
(b) Each Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurocurrency Rate Loan made to such Borrower from the
date the proceeds thereof are made available to such Borrower until the maturity
thereof (whether by acceleration or otherwise) at a rate per annum which shall,
during the Interest Period applicable thereto, be the Eurocurrency Rate for such
Interest Period plus the Applicable Margin.
(c) Subject to Section 11.09, overdue principal and overdue interest in
respect of each Loan and any other overdue amount payable by any Borrower
hereunder shall bear interest at a rate per annum equal to 2% per annum in
excess of the Base Rate in effect from time to time; provided, however, that no
Loan shall bear interest after maturity at a rate per annum, less than 2% in
excess of the rate of interest applicable thereto at maturity.
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(d) Accrued (and theretofore unpaid) interest shall be payable (i) in
respect of each Base Rate Loan, quarterly in arrears on the last Business Day of
each March, June, September and December, (ii) in respect of each Eurocurrency
Rate Loan, on the last day of the Interest Period applicable thereto and, in the
case of an Interest Period in excess of three months, on each date occurring at
three month intervals after the first day of such Interest Period, and (iii) in
respect of each Loan, on any prepayment (on the amount prepaid), at maturity
(whether by acceleration or otherwise) and, after such maturity, on demand.
(e) On each Interest Determination Date, the Administrative Agent shall
determine the interest rate for the Eurocurrency Rate Loans for which such
determination is being made, and shall promptly notify the relevant Borrower and
the Banks thereof. Each such determination shall, absent manifest error, be
final and conclusive and binding on all parties hereto.
2.09 Interest Periods. At the time it gives any Notice of Borrowing or
Notice of Conversion in respect of the making of, or conversion into any
Eurocurrency Rate Loan, the relevant Borrower shall have the right to elect, by
giving the Administrative Agent notice thereof, the interest period or interest
periods (each, an "Interest Period") applicable to such Eurocurrency Rate Loan,
each of which shall, at the option of such Borrower, be a one, two, three, six
or (subject to availability as determined by 100% of the Banks) nine month
period or, (subject to availability as determined by 100% of the Banks) if such
Eurocurrency Rate Loan is a Term Loan made pursuant to Section 3.05 hereof,
twelve month period, provided that: (i) all Eurocurrency Rate Loans comprising a
Borrowing shall at all times have the same Interest Period except as otherwise
required by Section 2.10(b); (ii) the Interest Period for any Eurocurrency Rate
Loan shall commence on the date of Borrowing of such Loan (including the date of
any conversion of a Base Rate Loan into Eurodollar Rate Loan); (iii) if the
Interest Period relating to a Eurocurrency Rate Loan begins on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period, such Interest Period shall end on the last Business Day of
such calendar month; (iv) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, however, that if the Interest Period for a
Eurocurrency Rate Loan would otherwise expire on a day which is not a Business
Day but is a day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding Business Day; and
(v) no Interest Period shall extend beyond the Commitment Termination Date.
2.10 Increased Costs, Illegality, etc. (a) In the event that any Bank
shall have determined (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the London
interbank market for deposits in
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Dollars, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of
Eurocurrency Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurocurrency Rate Loan because of (x) any change since the date hereof
in any applicable law or governmental rule, regulation, order or request
(whether or not having the force of law) (or in the interpretation or
administration thereof and including the introduction of any new law or
governmental rule, regulation, order or request), such as, for example,
but not limited to, (1) a change in the basis of taxation of payments to
any Bank or its Applicable Lending office of the principal of or interest
on the Notes or any other amounts payable hereunder (except for changes in
the rate of tax on, or determined by reference to, the net income or
profits of such Bank or its Applicable Lending Office imposed by any
jurisdiction in which its principal office or Applicable Lending Office is
located) or (2) a change in official reserve requirements, but, in all
events, excluding reserves required under Regulation D to the extent
included in the computation of the Eurocurrency Rate, and/or (y) other
circumstances affecting such Bank or the interbank Eurocurrency market, or
the position of such Bank in such market; or
(iii) at any time, that the making of any Eurocurrency Rate Loan has
been made (x) unlawful by any law or governmental rule, regulation or
order, (y) impossible by compliance by such Bank with any governmental
request (whether or not having force of law) or (z) impracticable as a
result of a contingency occurring after the date of this Agreement which
materially and adversely affects the London interbank market for Dollar
deposits;
then, and in any such event, such Bank (or the Administrative Agent, in the case
of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrowers, accompanied by an explanation of the basis therefor,
and, except in the case of clause (i) above, to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the other Banks). Thereafter (x) in the case of clause (i) above,
Eurocurrency Rate Loans of the maturities identified by the Administrative Agent
in such notice as unavailable shall no longer be available until such time as
the Administrative Agent notifies the relevant Borrower and the Banks that the
circumstances giving rise to such notice by the Administrative Agent no longer
exist, and any Notice of Borrowing or Notice of Conversion given by the relevant
Borrower with respect to its affected Eurocurrency Rate Loans which have not yet
been incurred (including by way of conversion) shall be deemed rescinded by such
Borrower, (y) in the case of clause (ii) above, the Borrower to whom the
Eurocurrency Rate Loan was made shall pay to such Bank, upon written demand
therefor, such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Bank in its sole
discretion shall determine) as shall be required to compensate such Bank for
such increased costs or reductions in amounts received or receivable hereunder
(a written notice as to the additional amounts owed to such Bank, showing the
basis for the calculation thereof, certified to such Borrower by such Bank
shall, absent manifest error, be final and
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conclusive and binding on all the parties hereto) and (z) in the case of clause
(iii) above, take one of the actions specified in Section 2.10(b) as promptly as
possible and, in any event, within the time period required by law.
(b) At any time that any Eurocurrency Rate Loan is affected by the
circumstances described in Section 2.10(a)(ii) or (iii), the Borrower to whom
such Loan was made may (and in the case of a Eurocurrency Rate Loan affected by
the circumstances described in Section 2.10(a)(iii) shall) either (i) if the
affected Loan is then being made initially or pursuant to a conversion cancel
said Borrowing by giving the Administrative Agent telephonic notice (confirmed
in writing) of the cancellation on the same date that such Borrower was notified
by the Bank or the Administrative Agent pursuant to Section 2.10(a)(ii) or (iii)
or (ii) if the affected Eurocurrency Rate Loan is then outstanding, upon at
least three Business Days' written notice to the Administrative Agent, prepay
the Eurocurrency Rate Loans of the affected Bank and reborrow the same as Base
Rate Loans, provided that, if more than one Bank is affected at any time, then
all affected Banks must be treated the same pursuant to this Section 2.10(b).
(c) If any Bank determines at any time that any applicable law or
governmental rule, regulation order or request (whether or not having the force
of law) concerning capital adequacy, or any change in interpretation or
administration thereof by any governmental authority, central bank or comparable
agency, which shall have become effective or applicable after the date hereof,
will have the effect of increasing the amount of capital required or expected to
be maintained by such Bank or a holding company of which such Bank is a
Subsidiary based on the existence of such Bank's Commitment hereunder or its
obligations hereunder, then the Borrowers shall pay to such Bank upon its
written demand therefor, such additional amounts as shall be required to
compensate such Bank or such holding company for the increased cost to such Bank
as a result of such increase of capital; such obligations of the Borrowers shall
be joint and several. In determining such additional amounts, each Bank will act
reasonably and in good faith and will use averaging and attribution methods
which are reasonable, provided that such Bank's determination of compensation
owing under this Section 2.10(c) shall, absent manifest error, be final and
conclusive and binding on all the parties hereto. Each Bank, upon determining
that any additional amounts will be payable pursuant to this Section 2.10(c),
will give prompt written notice thereof to the Borrowers, which notice shall
show the basis for calculation of such additional amounts, although the failure
to give any such notice shall not release or diminish any of the Borrowers'
obligations to pay additional amounts pursuant to this Section 2.10(c), absent
manifest error.
2.11 Compensation. Each Borrower shall compensate each Bank, upon its
written request (which request shall set forth the basis for requesting such
compensation), for all reasonable losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Bank to
fund its Eurocurrency Rate Loans) which such Bank may sustain: (i) if for any
reason (other than a default by such Bank or the Administrative Agent) a
Borrowing of Eurocurrency Rate Loans does not occur on a date specified therefor
in a Notice of Borrowing or Notice of Conversion (whether or not withdrawn by
the relevant Borrower or deemed withdrawn
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pursuant to Section 2.10(a)); (ii) if any repayment (including any repayment
made pursuant to Section 2.04 and any prepayment made pursuant to Section 4.01)
occurs on a date which is not the last day of the Interest Period with respect
thereto; (iii) if any prepayment of any of its Eurocurrency Rate Loans is not
made on any date specified in a notice of prepayment given by the relevant
Borrower; or (iv) as a consequence of (x) any other default by the relevant
Borrower to repay its Loans when required by the terms of this Agreement or any
Note of such Bank or (y) any prepayment made pursuant to Section 2.10(b).
2.12 Change of Applicable Lending Office. Each Bank agrees that, upon the
occurrence of any event giving rise to the operation of or a payment obligation
of any Borrower under Section 2.10(a)(ii) or (iii), 2.10(c) or 4.03 with respect
to such Bank, such Bank will, if requested by any of the Borrowers, use its best
efforts to designate another Applicable Lending Office for any Loans affected by
such event, with the object of avoiding the consequence of the event giving rise
to the operation of any such Section; provided that no such designation shall be
made if, in the reasonable judgment of such Bank, such Bank would suffer any
administrative, economic, legal, tax or regulatory disadvantage. Nothing in this
Section 2.12 shall affect or postpone any of the obligations of the Borrowers or
the right of any Bank provided in Section 2.10 or 4.03.
Section 3. Fees; Termination or Reduction of Commitments; Commitment
Termination Date; Extension of Commitments; Increase of Commitments.
3.01 Fees. (a) The Borrowers jointly and severally agree to pay to the
Administrative Agent on the dates set forth below, for distribution to the
Banks, a facility fee (the "Facility Fee") for the period from the date of this
Agreement until the Commitment Termination Date (or such earlier date as the
Total Commitment shall have been terminated) computed at the Applicable Facility
Fee Rate on the Total Commitment. Accrued Facility Fees shall be due and payable
quarterly in arrears on the third Business Day of each April, July, October and
January of each year, for the calendar quarter ending most recently prior to
such payment date, and on the Commitment Termination Date or upon such earlier
date as the Total Commitment shall be terminated.
(b) The Borrowers jointly and severally agree to pay to the Administrative
Agent on the date of this Agreement, for distribution to each Bank, such fees as
may be agreed in writing between the Borrowers, the Administrative Agent and the
Banks.
(c) The Borrowers shall pay to the Administrative Agent, for its own
account, such fees as may be agreed to from time to time between the Borrowers
and the Administrative Agent.
3.02 Termination or Reduction of Commitments. (a) On the Commitment
Termination Date, the Total Commitment (and the Commitment of each Bank) shall
terminate in its entirety.
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(b) Upon at least five Business Days' prior notice to the Administrative
Agent at its Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Banks), the Guarantor shall have the right, without
premium or penalty, to reduce or terminate the Total Commitment in whole or in
part, in integral multiples of $10,000,000 or lesser whole multiples of
$1,000,000; provided that any such reduction or termination must be applied to
reduce the Total Commitment on a pro rata basis and (ii) no such reduction of
the Total Commitment shall reduce the Total Commitment to less than the
aggregate amount of the Loans then outstanding.
3.03 Commitment Termination Date; Extension of Commitments. (a) The
"Commitment Termination Date" shall be April 24, 2003 or such later date to
which the Commitment Termination Date has been extended pursuant to Section
3.03(b).
(b) (i) The Guarantor may, by notice to the Administrative Agent (which
shall promptly so notify the Banks) given not earlier than 60 days and not later
than 45 days before the Commitment Termination Date then in effect (the
"Existing Commitment Termination Date"), request that the Banks extend the
Commitment Termination Date for an additional 364 days from the Existing
Commitment Termination Date. Such request shall be accompanied by a certificate
of a senior officer of the Guarantor stating that no Default or Event of Default
has occurred and is continuing and that since the date of the annual
consolidated financial statements received by the Banks pursuant to Section 7(a)
of the Guaranty most immediately prior to the date of such request, there has
been no material adverse change in the business, operations, property, assets,
condition (financial or otherwise) or (to the knowledge of the Guarantor)
prospects of the Guarantor or of the Guarantor and its Subsidiaries taken as a
whole. Each Bank which, in its sole discretion, agrees to so extend the
Commitment Termination Date and its Commitment (an "Extending Bank") shall
notify the Administrative Agent in writing of such Bank's agreement to such
extension not earlier than 45 days and not later than 35 days prior to the
Existing Commitment Termination Date, such notice to be revocable until the
Consent Date, whereupon it will become irrevocable. Any Bank that fails to so
notify the Administrative Agent shall be deemed to have declined to agree to the
requested extension (such Banks, together with such Banks as shall have notified
the Administrative Agent of their decision not to so extend the Commitment
Termination Date and their respective Commitments, the "Non-Extending Banks").
The Administrative Agent shall promptly, and in any event not later than 30 days
prior to the Existing Commitment Termination Date (the "Consent Date"), notify
the Guarantor of the Banks' respective decisions.
(ii) The Guarantor shall have the right, during the period commencing on
the Consent Date and ending three Business Days prior to the Existing Commitment
Termination Date (the "Determination Date"), to replace the Commitments of the
Non-Extending Banks with such additional Commitments as the Extending Banks may
irrevocably agree, by notice to the Administrative Agent, to make. The
Administrative Agent shall promptly give the Guarantor notice of any such
irrevocable agreement. If the aggregate amount of such additional Commitments
from Extending Banks is less than the aggregate amount of the Commitments of the
Non-Extending Banks, the Guarantor shall have the right to add to this
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Agreement one or more new banks to replace such difference in Commitments (each
Extending Bank so agreeing and each such new bank, an "Additional Commitment
Bank"). Each Additional Commitment Bank shall enter into an agreement in form
and substance satisfactory to the Guarantor and the Administrative Agent
pursuant to which such Additional Commitment Bank shall, effective as of the
Existing Commitment Termination Date, have undertaken a Commitment (which, if
such Additional Commitment Bank is an Extending Bank, shall be in addition to
such Extending Bank's Commitment hereunder on such date).
(iii) If on the Determination Date (x) the sum of the total Commitments of
the Extending Banks and the total Commitments of the Additional Commitment Banks
is more than 50% of the Commitments in effect immediately prior to the Existing
Commitment Termination Date and (y) no Default or Event of Default has occurred
and is continuing, then, effective as of the Existing Commitment Termination
Date, the Commitment Termination Date shall be extended to the date 364 days
after the Existing Commitment Termination Date (except that, if the date to
which the Commitment Termination Date is to be extended is not a Business Day,
the Commitment Termination Date as so extended shall be the next preceding
Business Day) and each Additional Commitment Bank shall thereupon become a
"Bank" for all purposes of this Agreement, the Commitment of each Additional
Commitment Bank which is an Extending Bank shall be increased in accordance with
its agreement referred to in Section 3.03(b)(ii) and the respective Commitments
of the other Extending Banks shall continue to be as they were before such
extension became effective. The Administrative Agent shall promptly give the
Banks, the Borrowers and the Guarantor written notice of each extension effected
pursuant to this Section 3.03, the post-extension levels of the Commitments of
the various Banks and the Commitment Termination Date as extended.
(iv) The Commitment of each Non-Extending Bank shall terminate on the
Existing Commitment Termination Date and each Non-Extending Bank shall be paid
in full all amounts owing to it hereunder and remaining unpaid on or before the
Existing Commitment Termination Date.
3.04 Increase of Commitments. The Guarantor shall have the right, at any
time prior to the then Existing Commitment Termination Date, without the consent
of the Required Banks, to effect an increase or increases in the Total
Commitment to any amount up to $1,800,000,000; provided that (i) each increase
shall be in a minimum amount of $1,000,000 and multiples of $1,000,000 in excess
thereof; (ii) no Default or Event of Default has occurred and is continuing; and
(iii) one or more of the existing Banks agree, but are not required to agree, to
increase their respective Commitments hereunder and/or one or more new banks,
satisfactory to the Guarantor and reasonably satisfactory to the Administrative
Agent, agree to provide Commitments hereunder. Notice from the Guarantor
requesting such increase shall be given to the Banks, with a copy to the
Administrative Agent, at least three Business Days before the proposed effective
date for such increase. An increase in the Total Commitments pursuant to this
Section 3.04 shall not, however, be permitted if the Total Commitment shall have
been reduced pursuant to Section 3.02(b) during the preceding four months.
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3.05 Term Loan Election. (a) The Guarantor may, by delivering to the
Administrative Agent a notice (a "Notice of Election of Term Option")
substantially in the form of Exhibit A-2 hereto, not more than 30 nor less than
5 Business Days before the Existing Commitment Termination Date, elect that all
of the Loans of each Bank to a Borrower outstanding as at the close of business
New York time on such Existing Commitment Termination Date be converted,
effective at such time, to a term loan (a "Term Loan") payable by such Borrower
to such Bank, which Term Loan shall (i) be in a principal amount equal to the
aggregate outstanding principal amount of such Loans, (ii) mature on the date
(the "Final Maturity Date") that is the earlier of (x) the date one year after
such Existing Commitment Termination Date or (y) the date specified by the
Guarantor in such Notice of Election of Term Option (and each outstanding Note
shall automatically be deemed amended accordingly), (iii) bear interest, until
the payment in full thereof, at the rates provided for in Section 2.08 and
otherwise constitute a "Loan" for all purposes of this Agreement and a
"Guaranteed Obligation" for all purposes of the Guaranty and (iv) at the option
of the Guarantor be Base Rate Loans or Eurocurrency Rate Loans; provided that
the election provided for in this Section 3.05 shall not take effect if, on the
date of the Notice of Election of Term Option or on the Existing Commitment
Termination Date, a Default or Event of Default has occurred and is continuing.
Upon the effectiveness of the conversion provided for in this Section 3.05,
Section 2.01(a)(ii) shall cease to be in effect, and each Borrower agrees that
it will, forthwith upon the request of any Bank through the Administrative
Agent, issue a new promissory note (a "Term Note") in favor of such Bank in
substantially the form of Exhibit B to the Amendment and Restatement in the
amount of the Term Loan of such Bank to such Borrower provided herein, in
exchange for the Note or Notes held by such Bank (which shall be promptly
returned to the Guarantor, through the Administrative Agent, marked
"Cancelled"), or, upon presentation of evidence to the reasonable satisfaction
of the Administrative Agent (in the Administrative Agent's sole discretion) of
the loss, destruction or theft of the Note or Notes held by such Bank, and upon
delivery to the Administrative Agent, for the benefit of the Borrower or
Borrowers having issued such Note or Notes, an indemnity, in form and substance
satisfactory to such Borrower or Borrowers, made by such Bank and holding such
Borrower or Borrowers harmless, in lieu of any such lost, destroyed or stolen
Note or Notes, which Term Note shall be deemed to be a "Note" for all purposes
of this Agreement and of the Guaranty.
(b) The Guarantor shall, in the case of any Eurocurrency Rate Loan made
pursuant to a Notice of Election of Term Option as provided in this Section 3.05
or pursuant to the conversion of a Term Loan which is a Base Rate Loan as
provided in Section 2.06 or in the case of the continuation of any Eurocurrency
Rate Loan which is a Term Loan, give notice to the Administrative Agent at its
Notice Office by noon (New York time) on that date three Business Days prior to
the making, conversion or continuation of such Eurocurrency Rate Loan, as the
case may be, stating its election of the Interest Period to be applied to such
Eurocurrency Rate Loan, provided, however, that: (i) the Interest Period for any
Eurocurrency Rate Loan which is a Term Loan shall commence on the date such
Eurocurrency Rate Loan is made, converted or continued, (ii) if the Interest
Period relating to a Eurocurrency Rate Loan which is a Term Loan begins on a day
for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period, such Interest Period shall end on the last Business
Day
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of such calendar month, (iii) if any Interest Period relating to a Eurocurrency
Rate Loan which is a Term Loan would otherwise expire on a day which is not a
Business Day, such Interest Period shall expire on the next succeeding Business
Day, provided, however, that if the Interest Period relating to a Eurocurrency
Rate Loan which is a Term Loan would otherwise expire on a day which is not a
Business Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the next preceding
Business Day and (iv) no Interest Period relating to a Eurocurrency Rate Loan
which is a Term Loan may be elected or deemed elected by the Guarantor if it
would extend beyond the Final Maturity Date. If any such Interest Period would
extend beyond the Final Maturity Date, then such Interest Period shall end on
the Final Maturity Date. If the Guarantor fails to timely give such notice of
Interest Period respecting any Term Loan to the Administrative Agent then the
Guarantor shall be deemed to have elected that the Term Loan shall be a Base
Rate Loan, provided that, notwithstanding Section 2.06(i) hereof, any such Base
Rate Loan so deemed elected may be converted into a Eurocurrency Rate Loan upon
delivery by the Borrower of a Notice of Conversion respecting such Base Rate
Loan to the Administrative Agent at its Notice Office prior to noon (New York
time) at least three Business Days' prior to the effectiveness of such
conversion pursuant to Section 2.06."
Section 4. Prepayments; Payments.
4.01 Voluntary Prepayments. Each Borrower shall have the right to prepay
the Loans without premium or penalty, in whole or in part from time to time on
the following terms and conditions: (i) such Borrower shall give the
Administrative Agent at its Notice Office at least two Business Days' prior
notice (in the case of Eurocurrency Rate Loans) and same-day prior notice (in
the case of Base Rate Loans) of its intent to prepay the Loans, the amount of
such prepayment, the Types of Loans to be prepaid, and, in the case of
Eurocurrency Rate Loans, the specific Borrowing or Borrowings pursuant to which
made, which notice the Administrative Agent shall promptly transmit to each of
the Banks; (ii) each prepayment shall be in an aggregate principal amount of at
least $1,000,000 in the case of Base Rate Loans and $5,000,000 in the case of
Eurocurrency Rate Loans; provided that no partial prepayment made pursuant to
any Borrowing shall reduce the outstanding Loans made pursuant to such Borrowing
to an amount less than $1,000,000 in the case of Base Rate Loans and $5,000,000
in the case of Eurocurrency Rate Loans; (iii) prepayments of Eurocurrency Rate
Loans made pursuant to this Section 4.01 may only be made if at the time of such
prepayment such Borrower shall have paid in full all amounts requested by any of
the Banks pursuant to Section 2.11; and (iv) each prepayment in respect of any
Loans made pursuant to a Borrowing shall be applied pro rata among such Loans.
4.02 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or any Note shall be made to
the Administrative Agent for account of the Bank or Banks entitled thereto not
later than 3:00 p.m. (New York City time) on the date when due and shall be made
in Dollars in immediately available funds at the Payment Office of the
Administrative Agent. Whenever any payment to be made hereunder or under any
Note shall be stated to be due on a day which is not a Business Day, the due
date
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thereof shall be extended to the next succeeding Business Day and, with respect
to payments of principal, interest shall be payable at the applicable rate
during such extension.
4.03 Net Payments. (a) All payments made by the Borrowers hereunder or
under any Note will be made without setoff, counterclaim or other defense. All
such payments will be made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein (but excluding, except as provided below, any tax imposed on or measured
by the net income of a Bank pursuant to the laws of the jurisdiction (or any
political subdivision or taxing authority thereof or therein) in which the
principal office or Applicable Lending Office of such Bank is located ("Excluded
Taxes") and all interest, penalties or similar liabilities with respect thereto
(collectively, "Taxes"). The Borrowers shall reimburse each Bank, upon the
written request of such Bank, for Excluded Taxes in respect of amounts paid to
or on behalf of such Bank pursuant to the preceding sentence. If any Taxes are
so levied or imposed, the Borrowers agree to pay the full amount of such Taxes
and such additional amounts as may be necessary so that every payment of all
amounts due hereunder or under any Note, after withholding or deduction for or
on account of any Taxes, will not be less than the amount provided for herein or
in such Note. The Borrowers will furnish to the Administrative Agent within 45
days after the date the payment of any Taxes is due pursuant to applicable law
certified copies of tax receipts evidencing such payment by the Borrowers. The
Borrowers will indemnify and hold harmless each Bank, and reimburse such Bank
upon its written request, for the amount of any Taxes so levied or imposed and
paid by such Bank.
(b) Each Bank shall designate an Applicable Lending Office that, on the
date of this Agreement or (in the case of any Person that becomes a Bank
hereunder by means of an assignment) on the date that such Bank becomes a party
hereto, is entitled to a zero rate of United States withholding tax on all
payments made hereunder by OFI and OCI. On the date of this Agreement, each Bank
organized under the laws of a jurisdiction outside the United States has
provided OFI and OCI with the forms prescribed by the Internal Revenue Service
of the United States (currently Forms W-8BEN or W-8ECI) certifying such Bank's
exemption from United States withholding taxes with respect to all payments to
be made to such Bank hereunder and under the Notes as at the date of such
certificate. Each Bank shall provide such forms (or appropriate replacement
forms) on an updated basis from time to time if requested by OFI or OCI. Unless
the Borrowers have received forms or other documents satisfactory to them
indicating that payments hereunder or under any Note are not subject to
withholding tax or are subject to such tax at a rate reduced by an applicable
tax treaty, OFI and OCI shall withhold taxes from such payments at the
applicable statutory rate in the case of payments to or for any Bank organized
under the laws of a jurisdiction outside the United States. If any Bank
organized under the laws of a jurisdiction outside the United States fails to
provide OFI and OCI, with the prescribed forms referred to in the second, third
and fourth sentences of this Section 4.03(b), and notwithstanding Section 11.14,
the Borrowers shall not be required to compensate such Bank under Section
4.03(a) for the amount of taxes withheld pursuant to the immediately preceding
sentence; provided that this sentence shall be inapplicable to any Bank that is
not able to make
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the certification set forth in such prescribed forms as a result of a change in
United States federal income tax law, regulation or interpretation occurring
after the date of this Agreement, or to an amendment, modification or revocation
of an applicable tax treaty or a change in official position regarding the
application or interpretation thereof, in each case, occurring after the date
hereof.
(c) In respect of Loans to OFP, each Bank shall designate an Applicable
Lending Office that, on the date of this Agreement or (in the case of any Person
that becomes a Bank hereunder by means of an assignment) on the date such Bank
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 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 4.03 referred to as a "Treaty Lender"). If any Bank
ceases to be within clause (i) or (ii) 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 Bank under Section 4.03(a) for the amount of taxes
withheld pursuant to the immediately preceding sentence. Any Bank within clause
(ii) above 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.
(d) Each Treaty Lender irrevocably appoints the Administrative Agent to
Act as syndicate manager under, and authorizes the Administrative Agent to
operate, and take any action necessary or desirable under, the PTR Scheme in
connection with the Facility. Each Treaty Lender shall cooperate with the
Administrative Agent in completing any procedural formalities necessary under
the PTR Scheme, and shall promptly supply to the Administrative Agent such
information as the Administrative 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 Administrative Agent for any liability or loss incurred by
the Administrative Agent as a result of the Administrative Agent acting as
syndicate manager under the PTR Scheme in connection with the Treaty Lender's
participation in any Loan (except to the extent that the liability or loss
arises directly from the Administrative Agent's gross negligence of 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 supply to the
Administrative Agent such information as the Administrative Agent may request in
connection with the operation of the PTR Scheme; and (ii) act in accordance with
any provisional notice issued by the UK Inland Revenue under the PTR
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Scheme. The Administrative 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 Loan to those Borrowers specified in such
provisional authority. Each of the Borrowers, the Treaty Lenders and the
Administrative Agent acknowledges that the Administrative 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.
Section 5. Conditions Precedent.
5.01 Effectiveness. The effectiveness of each Bank's Commitment under this
Agreement is subject to the satisfaction of the following conditions on the date
of this Agreement or such other date as is specified below:
(a) Notes. If requested by any Bank pursuant to Section 2.05(a), there
shall have been delivered to the Administrative Agent for account of such Bank a
Note issued by each Borrower which is to evidence such Bank's Loan to such
Borrower.
(b) Opinions of Counsel. For OFI and OCI, the Administrative Agent shall
have received (i) from Dewey Ballantine LLP, special New York counsel to OFI,
OCI and the Guarantor, an opinion addressed to each of the Banks substantially
in the form of Exhibit C-1 (some of which matters may, with the consent of the
Administrative Agent, be opined upon by the General Counsel of the Guarantor),
and covering such other matters incident to the transactions contemplated herein
as any Bank may reasonably request, and (ii) from Milbank, Tweed, Hadley &
McCloy LLP, special New York counsel to Citibank, an opinion addressed to each
of the Banks substantially in the form of Exhibit C-2 and covering such other
matters incident to the transactions contemplated herein as any Bank may
reasonably request; for OFP, the Administrative Agent shall have received (i)
from Dewey Ballantine LLP, special New York counsel to OFP, an opinion addressed
to each of the Banks substantially in the form of Exhibit C-3 and covering such
other matters incident to the transactions contemplated herein as any Bank may
reasonably request and (ii) from Macfarlanes, special English counsel to OFP, an
opinion addressed to each of the Banks substantially in the form of Exhibit C-4
and covering such other matters incident to the transactions contemplated herein
as any Bank may reasonably request.
(c) Corporate Documents; Proceedings.
(i) For OFI, the Administrative Agent shall have received a certificate,
signed by the President, the Chief Financial Officer, any Vice President, the
Treasurer or any Assistant Treasurer of OFI, and attested to by the Secretary or
any Assistant Secretary thereof, in the form of Exhibit D-1 with appropriate
insertions, together with copies of the Certificate of Incorporation and By-Laws
of OFI and the resolutions of such Borrower referred to in such certificate.
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(ii) For OCI, the Administrative Agent shall have received a certificate,
signed by the President, the Chief Financial Officer, any Vice President, the
Treasurer or any Assistant Treasurer of OCI, and attested to by the Secretary or
any Assistant Secretary thereof, in the form of Exhibit D-2 with appropriate
insertions, together with copies of the Certificate of Incorporation and By-Laws
of OCI and the resolutions of such Borrower referred to in such certificate.
(iii) For OFP, the Administrative Agent shall have received a certificate,
signed by a director of OFP in the form of Exhibit D-3, with appropriate
insertions, together with copies of the organizational documents of OFP and the
resolutions of OFP referred to in such certificate.
(iv) The Administrative Agent shall have received a certificate, signed by
the President, the Chief Financial Officer, any Vice President, the Treasurer or
the Assistant Treasurer of the Guarantor and attested to by the Secretary or any
Assistant Secretary of the Guarantor, in the form of Exhibit D-4, with
appropriate insertions, together with copies of the Certificate of Incorporation
and By-Laws of the Guarantor and the Resolutions of the Guarantor referred to in
such Certificate.
(v) For each Borrower, all corporate and legal proceedings and all
instruments and agreements in connection with the transactions contemplated in
this Agreement and the other Credit Documents shall be satisfactory in form and
substance to the Banks, and the Administrative Agent shall have received all
information and copies of all documents and papers, including records of
corporate proceedings and governmental approvals, if any, which any Bank
reasonably may have requested in connection therewith, such documents and papers
where appropriate to be certified by proper corporate or governmental
authorities.
(d) Guaranty. The Guarantor shall have duly authorized, executed and
delivered a Guaranty in the form of Exhibit E (as modified, supplemented, or
amended from time to time, the "Guaranty"), and the Guaranty shall be in full
force and effect as of the date of this Agreement.
(e) Fees Paid. All Fees payable under this Agreement to the Banks on the
date of this Agreement shall have been paid by the Borrowers.
(f) Existing Credit Agreement. The Administrative Agent shall have
received evidence that all commitments under the Borrowers' Credit Agreement
(364-Day Facility) dated as of April 30, 1999, as subsequently amended, have
terminated and all fees and other amounts payable thereunder have been paid in
full.
5.02 Borrowings. Each Borrowing of each Borrower is subject (except and to
the extent hereinafter indicated) to the satisfaction of the following
conditions with each Borrowing constituting a representation and warranty by
such Borrower that the conditions specified in paragraph (b) below are then
satisfied:
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(a) No Default; Representations and Warranties. At the time of each
Borrowing (other than a Borrowing of a Eurocurrency Rate Loan which, if given
effect, would not increase the aggregate amount of outstanding Eurocurrency Rate
Loans of any Bank) and also after giving effect thereto (i) there shall exist no
Default and (ii) all representations and warranties contained herein or in the
other Credit Documents (except the third sentence of Section 6(e) of the
Guaranty) shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and as of
the date of such Borrowing, other than representations and warranties stated to
be correct as of a date certain which shall have been true and correct in all
material respects on such date certain.
(b) Subsequent Legal Opinions. If, at the time of any Borrowing for any
Borrower, any Bank shall have requested same, the Administrative Agent shall
have received from Dewey Ballantine LLP, special New York counsel to the
Borrowers and the Guarantor, and/or Macfarlanes, special English counsel to OFP,
or such other counsel as shall be reasonably satisfactory to the Required Banks,
an opinion in form and substance satisfactory to the Banks, addressed to the
Banks, and dated the date of such Borrowing, covering, specifically, such of the
matters set forth in the opinions of counsel required to be delivered pursuant
to Section 5.01(b) above with respect to such Borrowing of such Borrower as the
requesting Bank shall specify.
(c) Guaranty. The Guaranty shall be in full force and effect as of the
date of each Borrowing.
The acceptance of the benefits of each Borrowing shall constitute a
representation and warranty by such Borrower to each of the Banks that all the
conditions specified in Section 5.02(a) above exist as of that time. All the
Notes, certificates, legal opinions and other documents and papers referred to
in this Section 5, unless otherwise specified, shall be delivered to the
Administrative Agent at the Administrative Agent's Notice Office for the account
of each of the Banks and, except for the Notes, in sufficient counterparts for
each of the Banks and shall be satisfactory in form and substance to the Banks.
Section 6. Representations, Warranties and Agreements. In order to induce
the Banks to enter into this Agreement and to make the Loans, each Borrower (but
only OFI and OCI with respect to Section 6.09) makes the following
representations, warranties and agreements as to itself as of the date of this
Agreement, which shall survive the execution and delivery of this Agreement and
the Notes and the making of the Loans.
6.01 Corporate Status. Each of the Borrowers and its Subsidiaries (i) is a
duly organized and validly existing corporation in good standing under the laws
of the jurisdiction of its incorporation, (ii) has the power and authority to
own its property and assets and to transact the business in which it is engaged
and (iii) is duly qualified as a foreign corporation and in good standing in
each jurisdiction where the ownership, leasing or operation of property or the
conduct of its business requires such qualification, except where the failure to
be so qualified could not have a material adverse effect on the business,
operations, property, assets, condition (financial or otherwise) or (to the
knowledge of such Borrower) prospects of such Borrower or of such Borrower and
its Subsidiaries taken as a whole.
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6.02 Corporate Power and Authority. Each Borrower has the corporate power
to execute, deliver and perform the terms and provisions of each of the Credit
Documents to which it is party and has taken all necessary corporate action to
authorize the execution, delivery and performance by it of each of such Credit
Documents. Such Borrower has duly executed and delivered each of the Credit
Documents to which it is party, and each of such Credit Documents constitutes
its legal, valid and binding obligation enforceable in accordance with its terms
except as the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting creditors' rights
generally and by general equitable principles (regardless of whether the issue
of enforceability is considered in a proceeding in equity or at law).
6.03 No Violation. Neither the execution, delivery or performance by any
Borrower of the Credit Documents to which it is a party, nor compliance by it
with the terms and provisions thereof, (i) will contravene any provision of any
law, statute, rule or regulation or any order, writ, injunction or decree of any
court or governmental instrumentality, (ii) will conflict or be inconsistent
with or result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or any
indenture, mortgage, deed of trust, credit agreement, loan agreement or any
other agreement, contract or instrument to which such Borrower or any of its
Subsidiaries is a party or by which it or any of its property or assets is bound
or to which it may be subject or (iii) will violate any provision of the
Certificate of Incorporation, By-Laws or other comparable corporate charter
documents of such Borrower or any of its Subsidiaries.
6.04 Governmental Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made prior to the date hereof), or exemption
by, any governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with, (i) the execution,
delivery and performance of any Credit Document to which each Borrower is a
party or (ii) the legality, validity, binding effect or enforceability of any
such Credit Document.
6.05 Litigation. There are no actions, suits or proceedings pending or, to
the best knowledge of any Borrower, threatened (i) with respect to any Credit
Document or (ii) that are reasonably likely to materially and adversely affect
the business, operations, property, assets, condition (financial or otherwise)
or (to the knowledge of such Borrower) prospects of such Borrower or of such
Borrower and its Subsidiaries taken as a whole.
6.06 True and Complete Disclosure. All factual information (taken as a
whole) heretofore or contemporaneously furnished by or on behalf of each
Borrower in writing to any Bank (including, without limitation, all information
contained in the Credit Documents) 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
Borrower in writing to any Bank 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
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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.
6.07 Use of Proceeds; Margin Regulations. All proceeds of each Loan shall
be used by each Borrower for general corporate purposes, including acquisitions.
No part of the proceeds of any Loan will be used by such Borrower to purchase or
carry any Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock in violation of Regulation T, U or X of
the Board of Governors of the Federal Reserve Board. Not more than 25% of the
value of the assets of such Borrower or such Borrower and its Subsidiaries
subject to the restrictions contained in Section 8 of this Agreement constitute
Margin Stock and, at the time of each Borrowing, not more than 25% of the value
of the assets of such Borrower or such Borrower and its Subsidiaries subject to
the restrictions contained in Section 8 of this Agreement will constitute Margin
Stock. Notwithstanding the foregoing provisions of this Section 6.07, no
Borrower will use the proceeds of any Loan to purchase the capital stock of any
corporation in a transaction, or as part of a series of transactions, (i) the
purpose of which is, at the time of any such purchase, to acquire control of
such corporation or (ii) the result of which is the ownership by the Guarantor
and its Subsidiaries (including, without limitation, such Borrower) of 10% or
more of the capital stock of such corporation, in either case if the Board of
Directors of such corporation has publicly announced its opposition to such
transaction.
6.08 Tax Returns and Payments. Each of the Borrowers and its Subsidiaries
has filed all tax returns required to be filed (taking into account all valid
extensions) by it and has paid all income taxes payable by it which have become
due pursuant to such tax returns and all other taxes and assessments payable by
it which have become due, other than those not yet delinquent and except for
those contested in good faith and for which adequate reserves have been
established. Each Borrower and its Subsidiaries has paid, or has provided
adequate reserves (in the good faith judgment of the management of the Borrower)
for the payment of, all Federal and state income taxes or income tax imposed by
any other relevant jurisdiction applicable for all prior fiscal years and for
the current fiscal year to the end of the fiscal quarter immediately preceding
the date hereof.
6.09 Compliance with ERISA. Each Plan is in substantial compliance with
ERISA; no Plan is insolvent or in reorganization, no Plan has an Unfunded
Current Liability, and no Plan has an accumulated or waived funding deficiency
or permitted decreases in its funding standard account within the meaning of
Section 412 of the Code; neither OFI or OCI or any Subsidiary or ERISA Affiliate
of OFI or OCI has incurred any material liability to or on account of a Plan
pursuant to Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA or expects to
incur any liability under any of the foregoing sections on account of the
termination of participation in or contributions to any such Plan; no
proceedings have been instituted to terminate any Plan; no condition exists
which presents a material risk to OFI, OCI or any of their respective
Subsidiaries of incurring a liability to or on account of a Plan pursuant to the
foregoing provisions of ERISA and the Code; no Lien imposed under the Code or
ERISA on the assets of OFI, OCI or any of their respective Subsidiaries exists
or is likely to arise on account of any Plan; and OFI, OCI and
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their respective Subsidiaries may terminate contributions to any other employee
benefit plans maintained by them without incurring any material liability to any
Person interested therein.
6.10 Compliance with Statutes, etc. Each of the Borrowers and its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign in respect of the conduct of its business and the ownership
of its property (including applicable statutes, regulations, orders and
restrictions relating to environmental standards and controls), except such
noncompliances as would not, if the aggregate, have a material adverse effect on
the business, operations, property, assets, condition (financial or otherwise)
or (to the knowledge of such Borrower) prospects of such Borrower or of such
Borrower and its Subsidiaries taken as a whole.
6.11 Investment Company Act. No Borrower or any of its Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
6.12 Public Utility Holding Company Act. No Borrower or any of its
Subsidiaries is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate," of a "holding company" or of a "subsidiary company"
of a "holding company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
Section 7. Affirmative Covenants. Each Borrower (but only OFI and OCI with
respect to Section 7.05) covenants and agrees as to itself that on and after the
date hereof and until the Total Commitment has terminated and the Loans and
Notes, together with interest, Fees and all other obligations incurred hereunder
and thereunder, are paid in full:
7.01 Information Covenants. Each Borrower will furnish to each Bank:
(a) Officer's Certificates. At the time of the delivery of the financial
statements provided for in Section 7(a)(i) and (ii) of the Guaranty, a
certificate of the chief financial officer of such Borrower to the effect that,
to the best of his knowledge, no Default or Event of Default has occurred and is
continuing or, if any Default or Event of Default has occurred and is
continuing, specifying the nature and extent thereof.
(b) Notice of Default or Litigation. Promptly, and in any event within
three Business Days after an officer of the Borrower obtains knowledge thereof,
notice of (i) the occurrence of any event which constitutes a Default or Event
of Default and (ii) any litigation or governmental proceeding pending (x)
against such Borrower or any of its Subsidiaries which could materially and
adversely affect the business, operations, property, assets, condition
(financial or otherwise) or (to the knowledge of such Borrower) prospects of
such Borrower or such Borrower and its Subsidiaries taken as a whole or (y) with
respect to any Credit Document.
(c) Other Reports and Filings. Promptly, copies of all financial
information, proxy materials and other information and reports, if any, which
such Borrower shall file with
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the Securities and Exchange Commission or any governmental agencies substituted
therefor (the "SEC").
(d) Other Information. From time to time, such other information or
documents (financial or otherwise) as any Bank may reasonably request.
7.02 Books, Records and Inspections. Each Borrower will, and will cause
each of its Subsidiaries to, keep proper books of record and accounts in which
full, true and correct entries in conformity with generally accepted accounting
principles and all requirements of law shall be made of all dealings and
transactions in relation to its business and activities. Each Borrower will, and
will cause each of its Subsidiaries to, permit officers and designated
representatives of the Administrative Agent or any Bank to visit and inspect,
under guidance of officers of such Borrower or such Subsidiary, any of the
properties of such Borrower or such Subsidiary, and to examine the books of
record and accounts of such Borrower or such Subsidiary and discuss the affairs,
finances and accounts of such Borrower or such Subsidiary with, and be advised
as to the same by, its and their officers, all at such reasonable times and
intervals and to such reasonable extent as the Administrative Agent or such Bank
may request.
7.03 Corporate Franchises. Each Borrower will, and will cause each of its
Subsidiaries to, do or cause to be done, all things necessary to preserve and
keep in full force and effect its existence and its material rights, franchises,
licenses and patents; provided, however, that nothing in this Section 7.03 shall
prevent (i) the withdrawal by such Borrower or any of its Subsidiaries of its
qualification as a foreign corporation in any jurisdiction where such withdrawal
could not have a material adverse effect on the business, operations, property,
assets, condition (financial or otherwise) or (to the knowledge of such
Borrower) prospects of such Borrower or such Subsidiary or (ii) any merger
involving such Borrower or any of its Subsidiaries to the extent permitted by
Section 7(j) of the Guaranty.
7.04 Compliance with Statutes, etc. Each Borrower will, and will cause
each of its Subsidiaries to, comply with all applicable statutes, regulations
and orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and the
ownership of its property (including applicable statutes, regulations, orders
and restrictions relating to environmental standards and controls), except such
noncompliances as could not, in the aggregate, have a material adverse effect on
the business, operations, property, assets, condition (financial or otherwise)
or (to the knowledge of such Borrower) prospects of such Borrower or of such
Borrower and its Subsidiaries taken as a whole.
7.05 ERISA. As soon as possible and, in any event, within 10 days after
OFI or any of its Subsidiaries or ERISA Affiliates or OCI or any of its
Subsidiaries or ERISA Affiliates knows or has reason to know of any of the
following, OFI or OCI, as the case may be, will deliver to each of the Banks a
certificate of the chief financial officer of OFI or OCI, as the case may be,
setting forth details as to such occurrence and such action, if any, which OFI,
OCI, such Subsidiary or such ERISA Affiliate is required or proposes to take,
together with any notices required or proposed to be given to or filed with or
by OFI, OCI, the Subsidiary, the ERISA Affiliate, the PBGC, a Plan participant
or the Plan administrator with respect thereto: that a
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Reportable Event has occurred, that an accumulated funding deficiency has been
incurred or an application may be or has been made to the Secretary of the
Treasury for a waiver or modification of the minimum funding standard (including
any required installment payments) or an extension of any amortization period
under Section 412 of the Code with respect to a Plan, that a Plan has been or
may be terminated via a "distress termination" as referred to in Section 4041(c)
of ERISA, reorganized, partitioned or declared insolvent under Title IV of
ERISA, that a Plan has an Unfunded Current Liability giving rise to a Lien under
ERISA, that proceedings may be or have been instituted by the PBGC to terminate
a Plan, that a proceeding has been instituted pursuant to Section 515 of ERISA
to collect a delinquent contribution to a Plan, or that OFI or any of its
Subsidiaries or ERISA Affiliates or OCI or any of its Subsidiaries or ERISA
Affiliates will or may incur any liability (including any contingent or
secondary liability) to or on account of the termination of or withdrawal from a
Plan under Section 4062, 4063, 4064, 4201 or 4204 of ERISA. In addition to any
certificates or notices delivered to the Banks pursuant to the first sentence
hereof, copies of notices received by OFI or any of its Subsidiaries or ERISA
Affiliates or OCI or any of its Subsidiaries or ERISA Affiliates required to be
delivered to the Banks hereunder shall be delivered to the Banks no later than
10 days after the later of the date such notice has been filed with the Internal
Revenue Service or the PBGC, given to Plan participants or received by OFI or
any of its Subsidiaries or ERISA Affiliates or OCI or any of its Subsidiaries or
ERISA Affiliates.
7.06 End of Fiscal Years; Fiscal Quarters. Each Borrower shall cause (i)
each of its, and each of its Subsidiary's, fiscal years to end on December 31
and (ii) each of its, and each of its Subsidiary's, fiscal quarters to end on
March 31, June 30, September 30 and December 31.
Section 8. Negative Covenants. Each Borrower covenants and agrees, as to
itself, that on and after the date hereof and until the Total Commitment has
terminated and the Loans and Notes, together with interest, Fees and all other
obligations incurred hereunder and thereunder, are paid in full:
8.01 Liens. Such Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
such Borrower or any of its Subsidiaries, whether now owned or hereafter
acquired, provided that the provisions of this Section 8.01 shall not prevent
the creation, incurrence, assumption or existence of Liens expressly permitted
under Section 7(i) of the Guaranty.
8.02 Consolidation, Merger, Sale of Assets, etc. Such Borrower will not,
and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve
its affairs or enter into any transaction of merger or consolidation, or convey,
sell, lease or otherwise dispose of (or agree to do any of the foregoing at any
future time) all or any part of its property or assets, or purchase or otherwise
acquire (in one or a series of related transactions) any part of the property or
assets (other than purchases or other acquisitions of inventory, materials and
equipment in the ordinary course of business) of any Person, or permit any of
its Subsidiaries so to do any of the
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foregoing, except that such Borrower and its Subsidiaries may take any of the
foregoing actions to the extent expressly permitted under Section 7(j) of the
Guaranty.
8.03 Leases. Such Borrower will not enter into or permit any Subsidiary to
enter into any agreements to rent or lease any real or personal property
(excluding capitalized leases) except in the ordinary course of business.
8.04 Indebtedness. Such Borrower will not permit any of its Subsidiaries
to contract, create, incur, assume or suffer to exist any Indebtedness, except
(i) Indebtedness listed on Schedule II to the Guaranty ("Existing
Indebtedness"), (ii) accrued expenses and current trade accounts payable
incurred in the ordinary course of business, and obligations under trade letters
of credit incurred by such Subsidiaries in the ordinary course of business,
which are to be repaid in full not more than one year after the date on which
such Indebtedness is originally incurred to finance the purchase of goods by
such Subsidiary and (iii) obligations under letters of credit incurred by such
Subsidiaries in the ordinary course of business in support of obligations
incurred in connection with worker's compensation, unemployment insurance and
other social security legislation and (iv) Indebtedness of Subsidiaries of such
Borrower to the extent permitted under Section 7(1) of the Guaranty.
8.05 Advances, Investments and Loans. Such Borrower will not, and will not
permit any of its Subsidiaries to, lend money or credit or make advances to any
Person, or purchase or acquire any stock, obligations or securities of, or any
other interest in, or make any capital contribution to, any other Person, except
as expressly permitted under Section 7(m) of the Guaranty.
8.06 Transactions with Affiliates. Such Borrower will not, and will not
permit any of its Subsidiaries to, enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of such Borrower, other than on terms and conditions substantially
as favorable to such Borrower or such Subsidiary as would be obtainable by such
Borrower or such Subsidiary at the time in a comparable arm's-length transaction
with a Person other than an Affiliate.
8.07 Limitation on Restrictions on Subsidiary Dividends and Other
Distributions. Such Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
such Subsidiary to (a) pay dividends or make any other distributions on its
capital stock or any other interest or participation in its profits owned by
such Borrower or any Subsidiary of such Borrower, or pay any Indebtedness owed
to such Borrower or a Subsidiary of the Borrower, (b) make loans or advances to
the Borrower or (c) transfer any of its properties or assets to such Borrower,
except for such encumbrances or restrictions existing under or by reason of (i)
applicable law, (ii) this Agreement or any other Credit Document and (iii)
customary provisions restricting subletting or assignment of any lease governing
a leasehold interest of the Borrower or a Subsidiary of the Borrower.
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8.08 Business. Such Borrower will not, and will not permit any of its
Subsidiaries to, engage (directly or indirectly) in any business other than the
business in which it is engaged on the date hereof and any other reasonably
related businesses.
8.09 Dividends. Such Borrower will not declare or pay any dividends, or
return any capital, to its stockholders or authorize or make any other
distribution, payment or delivery of property or cash to its stockholders as
such, or redeem, retire, purchase or otherwise acquire, directly or indirectly,
for a consideration, any shares of any class of its capital stock now or
hereafter outstanding (or any options or warrants issued by such Borrower with
respect to its capital stock), or set aside any funds for any of the foregoing
purposes, or permit any of its Subsidiaries to purchase or otherwise acquire for
a consideration any shares of any class of the capital stock of such Borrower
now or hereafter outstanding (or any options or warrants issued by such Borrower
with respect to its capital stock); provided that such Borrower may take any of
the foregoing actions so long as no Default or Event of Default exists or would
result therefrom.
Section 9. Event of Default. Upon the occurrence of any of the following
specified events (each an "Event of Default"):
9.01 Payments. (i) Any principal of any Loan or any Note shall not have
been paid when due or (ii) any interest on any Loan or any Note or any Fees or
any other amounts owing hereunder or under any Note with respect thereto shall
not have been paid when due and such payment failure shall continue unremedied
for three or more Business Days; or
9.02 Representations, etc. Any representation, warranty or statement made
by any of the Borrowers or the Guarantor herein or in any other Credit Document
or in any certificate delivered pursuant hereto or thereto shall prove to be
untrue in any material respect on the date as of which made or deemed made; or
9.03 Covenants. Any Borrower shall (i) default in the due performance or
observance by it of any term, covenant or agreement contained in Section
7.01(b)(i), 7.06 or 8 or (ii) default in the due performance or observance by it
of any term, covenant or agreement (other than those referred to in Sections
9.01 and 9.02 and clause (i) of this Section 9.03) contained in this Agreement
and such default shall continue unremedied for a period of 30 days after written
notice to such Borrower by the Administrative Agent or any Bank; or
9.04 Default Under Other Agreements. Any Borrower, the Guarantor or any of
their Subsidiaries shall (i) default in any payment of any Indebtedness in
excess of $60,000,000 in the aggregate (other than the Notes) beyond the period
of grace (not to exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness was created or (ii) default in the
observance or performance of any agreement or condition relating to any such
Indebtedness (other than the Notes) or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of any such Indebtedness (or a trustee
or agent on behalf of such holder or holders) to cause (determined without
regard to whether any notice is required), any such Indebtedness to become due
prior to
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its stated maturity; or any such Indebtedness of any Borrower, the Guarantor or
any of their Subsidiaries shall be declared to be due and payable, or required
to be prepaid other than by a regularly scheduled required prepayment, prior to
the stated maturity thereof; or
9.05 Bankruptcy, etc. Any Borrower, the Guarantor or any Material
Subsidiary shall commence a voluntary case concerning itself under the United
States Bankruptcy Code (the "Bankruptcy Code"); or an involuntary case is
commenced against any Borrower, the Guarantor or any Material Subsidiary, and
the petition is not controverted within 10 days, or is not dismissed within 60
days, after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or substantially all
of the property of any Borrower, the Guarantor or any Material Subsidiary; or
any Borrower, the Guarantor or any Material Subsidiary commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, insolvency or similar law of any jurisdiction whether now or hereafter
in effect relating to such Borrower, the Guarantor or such Material Subsidiary;
or there is commenced against any Borrower, the Guarantor or any Material
Subsidiary any such proceeding which remains undismissed for a period of 60
days; or any Borrower, the Guarantor or any Material Subsidiary is adjudicated
insolvent or bankrupt; or any order of relief or other order approving any such
case or proceeding is entered; or any Borrower, the Guarantor or any Material
Subsidiary suffers any appointment of any custodian or the like for it or all or
substantially all of its property to continue undischarged or unstayed for a
period of 60 days; or any Borrower, the Guarantor or any Material Subsidiary
makes a general assignment for the benefit of creditors; or any corporate action
is taken by any Borrower, the Guarantor or any Material Subsidiary for the
purpose of effecting any of the foregoing; or
9.06 ERISA. Any Plan shall fail to maintain the minimum funding standard
required for any plan year or part thereof or a waiver of such standard or
extension of any amortization period is sought or granted under Section 412 of
the Code, any Plan is, shall have been or is likely to be terminated or the
subject of termination proceeding under ERISA, any Plan shall have an Unfunded
Current Liability, or OFI or any of its Subsidiaries or ERISA Affiliates has
incurred or is likely to incur a liability to or on account of a Plan under
Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA, and there shall result
from any such event or events the imposition of a Lien upon the assets of the
Borrowers, the Guarantor or any of their Subsidiaries, the granting of a
security interest, or a liability or a material risk of incurring a liability to
the PBGC or a Plan or a trustee appointed under ERISA or a penalty under Section
4971 of the Code, which, in the opinion of the Required Banks, will have a
material adverse effect upon the business operations, property, assets,
condition (financial or otherwise) or prospects of the Borrowers, the Guarantor,
the Borrowers and their Subsidiaries taken as a whole or the Guarantor and its
Subsidiaries taken as a whole; or
9.07 Guaranty. The Guaranty or any provision thereof shall cease to be in
full force or effect; or the Guarantor shall deny or disaffirm the Guarantor's
obligations under the Guaranty; or the Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to the Guaranty (other than those referred to in
Sections 7 (a) - (g) , (1) or (m) of the Guaranty); or the Guarantor shall
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default in the due performance or observance of any term, covenant or agreement
contained in Sections 7 (a) - (g) , (1) or (m) of the Guaranty and such default
shall continue unremedied for a period of 30 days after written notice to the
Borrower by either the Administrative Agent or any Bank; or
9.08 Ownership of the Borrowers. The Guarantor shall cease to own,
directly or indirectly, all of the capital stock of the Borrowers free and clear
of all Liens, adverse claims and rights of third parties; or
9.09 Ownership of the Guarantor. (i) In any twelve month period, 40% or
more of the members of the full Board of Directors of the Guarantor shall have
resigned or been removed or replaced, or (ii) the acquisition, whether directly
or indirectly, by any Person or "group" (as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended) (other than an employee benefit or
stock ownership plan of the Guarantor) of more than 30% of the voting stock of
the Guarantor shall have occurred; or
9.10 Judgments. One or more judgments or decrees shall be entered against
any of the Borrowers, the Guarantor or any of their Subsidiaries involving in
the aggregate for the Borrowers, the Guarantor and their Subsidiaries a
liability (not paid or fully covered by insurance) of $60,000,000 or more, and
all such judgments or decrees shall not have been vacated, discharged or stayed
or bonded pending appeal within 60 days after the entry thereof; then, and in
any such event, and at any time thereafter, if any Event of Default shall then
be continuing, the Administrative Agent may and, upon the written request of the
Required Banks, shall, by written notice to the Borrowers, take any or all of
the following actions, without prejudice to the rights of the Administrative
Agent, any Bank or the holder of any Note to enforce its claims against the
Borrowers (provided that, if an Event of Default specified in Section 9.05 shall
occur with respect to the Borrowers, the result which would occur upon the
giving of written notice by the Administrative Agent to the Borrowers as
specified in clauses (i) and (ii) below shall occur automatically without the
giving of any such notice): (i) declare the Total Commitment terminated,
whereupon the Commitment of each Bank to make Loans hereunder shall forthwith
terminate immediately and any Facility Fees and all other Fees shall forthwith
become due and payable without any other notice of any kind; and/or (ii) declare
the principal of and any accrued interest in respect of all Loans and the Notes
and all obligations owing hereunder and thereunder to be, whereupon the same
shall become, forthwith due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrowers.
Section 10. The Administrative Agent; Agents.
10.01 Appointment. The Banks hereby designate Citibank as Administrative
Agent, to act as specified herein and in the other Credit Documents. Each Bank
hereby irrevocably authorizes, and each holder of any Note by the acceptance of
such Note shall be deemed irrevocably to authorize, the Administrative Agent to
take such action on its behalf under the provisions of this Agreement, the other
Credit Documents and any other instruments and agreements referred to herein or
therein and to exercise such powers and to perform such
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duties hereunder and thereunder as are specifically delegated to or required of
the Administrative Agent by the terms hereof and thereof and such other powers
as are reasonably incidental thereto. The Administrative Agent may perform any
of its duties hereunder by or through its officers, directors, agents or
employees.
10.02 Nature of Duties. The Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
Guaranty. Neither the Administrative Agent nor any of its officers, directors,
agents or employees shall be liable for any action taken or omitted by it or
them hereunder or under any other Credit Document or in connection herewith or
therewith, unless caused by its or their gross negligence or willful misconduct.
The duties of the Administrative Agent shall be mechanical and administrative in
nature; the Administrative Agent shall not have by reason of this Agreement or
any other Credit Document a fiduciary relationship in respect of any Bank or the
holder of any Note; and nothing in this Agreement or any other Credit Document,
expressed or implied, is intended to or shall be so construed as to impose upon
the Administrative Agent any obligations in respect of this Agreement or any
other Credit Document except as expressly set forth herein.
10.03 Lack of Reliance on the Administrative Agent. Independently and
without reliance upon the Administrative Agent, each Bank and the holder of each
Note, to the extent it deems appropriate, has made and shall continue to make
its own independent investigation and appraisal of the financial condition and
affairs of the Borrowers and the Guarantor in connection with the making and the
continuance of the Loans and the taking or not taking of any action in
connection herewith and, except as expressly provided in this Agreement, the
Administrative Agent shall have no duty or responsibility, either initially or
on a continuing basis, to provide any Bank or the holder of any Note with any
credit or other information with respect thereto, whether coming into its
possession before the making of the Loans or at any time or times thereafter.
The Administrative Agent shall not be responsible to any Bank or the holder of
any Note for any recitals, statements, information, representations or
warranties herein or in any document, certificate or other writing delivered in
connection herewith or for the execution, effectiveness, genuineness, validity,
enforceability, perfection, collectibility, priority or sufficiency of this
Agreement or any other Credit Document or the financial condition of the
Borrowers or the Guarantor or be required to make any inquiry concerning either
the performance or observance of any of the terms, provisions or conditions of
this Agreement or any other Credit Document, or the financial condition of the
Borrowers or the Guarantor or the existence or possible existence of any Default
or Event of Default.
10.04 Certain Rights of the Administrative Agent. If the Administrative
Agent shall request instructions from the Required Banks with respect to any act
or action (including failure to act) in connection with this Agreement or any
other Credit Document, the Administrative Agent shall be entitled to refrain
from such act or taking such action unless and until the Administrative Agent
shall have received instructions from the Required Banks; and the Administrative
Agent shall not incur liability to any Person by reason of so refraining.
Without limiting the foregoing, no Bank or the holder of any Note shall have any
right of action whatsoever against the Administrative Agent as a result of the
Administrative Agent's acting or
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refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Required Banks.
10.05 Reliance. The Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
any Person that the Administrative Agent believed to be the proper Person, and,
with respect to all legal matters pertaining to this Agreement and any other
Credit Document and its duties hereunder and thereunder, upon advice of counsel
selected by it.
10.06 Indemnification. To the extent the Administrative Agent is not
reimbursed by the Borrowers, the Banks will reimburse the Administrative Agent
on demand, in proportion to their respective percentages used in determining the
Required Banks at such time, for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, suits,
costs, expenses (including, without limitation, attorneys' fees and expenses) or
disbursements of whatsoever kind or nature which may be imposed on, asserted
against or incurred by the Administrative Agent in performing its duties
hereunder or under any other Credit Document, or in any way relating to or
arising out of this Agreement or any other Credit Document; provided that no
Bank shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or willful
misconduct. The obligations of the Banks under this Section 10.06 shall survive
the termination of this Agreement.
10.07 The Administrative Agent in its Individual Capacity. The
Administrative Agent may accept deposits from, lend money to, and generally
engage in any kind of banking, trust or other business with the Borrowers or any
Affiliate of the Borrowers as if it were not performing the duties specified
herein, and may accept fees and other consideration from the Borrowers for
services in connection with this Agreement and otherwise without having to
account for the same to the Banks.
10.08 Holders. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment, transfer or endorsement thereof, as the case may be,
shall have been filed with the Administrative Agent. Any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee, assignee or indorsee, as the case may be,
of such Note or of any Note or Notes issued in exchange therefor.
10.09 Resignation By the Administrative Agent. (a) The Administrative
Agent may resign from the performance of all its functions and duties hereunder
and/or under the other Credit Documents at any time by giving 15 Business Days'
prior written notice to the Borrowers and the Banks. Such resignation shall take
effect upon the appointment of a successor Administrative Agent pursuant to
clauses (b) and (c) below or as otherwise provided below.
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(b) Upon any such notice of resignation, the Banks shall appoint a
successor Administrative Agent hereunder or thereunder who shall be a commercial
bank or trust company reasonably acceptable to the Borrowers.
(c) If a successor Administrative Agent shall not have been so appointed
within such 15 Business Day period, the Administrative Agent, with the consent
of the Borrowers, may then appoint a successor Administrative Agent who shall
serve as Administrative Agent hereunder or thereunder until such time, if any,
as the Banks appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant to
clause (b) or (c) above by the 20th Business Day after the date such notice of
resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Banks shall thereafter perform all
the duties of the Administrative Agent hereunder and/or under any other Credit
Document until such time, if any, as the Banks appoint a successor
Administrative Agent as provided above.
10.10 Lead Arranger, Documentation Agent and Syndication Agents. The Lead
Arranger, the Documentation Agent and the Syndication Agents so named on the
cover page of this Agreement shall have no rights or obligations under this
Agreement in their respective capacities as Lead Arranger, the Documentation
Agent and the Syndication Agents.
10.11 Replacement. The Guarantor may, with the consent of the Required
Banks, replace the Bank which is acting in the capacity of Administrative Agent,
but solely with respect to such capacity.
Section 11. Miscellaneous.
11.01 Payment of Expenses, etc. The Borrowers shall: (i) whether or not
the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses (x) of the Administrative Agent (including,
without limitation, the fees and disbursements of Milbank, Tweed, Hadley &
McCloy LLP) in connection with the preparation, execution and delivery of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein and any amendment, waiver of consent relating
hereto or thereto and (y) of the Administrative Agent and each of the Banks in
connection with the enforcement of this Agreement and the other Credit Documents
and the documents and instruments referred to herein and therein (including,
without limitation, the fees and disbursements of counsel for the Administrative
Agent and for each of the Banks); (ii) pay and hold each of the Banks harmless
from and against any and all present and future stamp and other similar taxes
with respect to the foregoing matters and save each of the Banks harmless from
and against any and all liabilities with respect to or resulting from any delay
or omission (other than to the extent attributable to such Bank) to pay such
taxes; and (iii) indemnify each of the Administrative Agent and each Bank, its
Affiliates and their respective officers, directors, employees, representatives
and agents from and hold each of them harmless against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, suits,
costs,
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expenses and disbursements incurred by any of them as a result of, or arising
out of, or in any way related to, or by reason of, any investigation, litigation
or other proceeding (whether or not the Administrative Agent or any Bank is a
party thereto) related to the entering into and/or performance of this Agreement
or any other Credit Document or the use or proposed use of the proceeds of any
Loans or the consummation of any transactions contemplated herein or in any
other Credit Document, including, without limitation, the fees and disbursements
of counsel incurred in connection with any such investigation, litigation or
other proceeding (but excluding any such liabilities, obligations, losses, etc.,
to the extent incurred by reason of the gross negligence or willful misconduct
of the Person to be indemnified).
11.02 Right of Setoff. In addition to any rights now or hereafter granted
under applicable law or otherwise, and not by way of limitation of any such
rights, upon the occurrence of an Event of Default, each Bank and the
Administrative Agent (each, together with its Affiliates, a "Relevant
Institution") is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to the Borrowers or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Relevant Institution (including,
without limitation, by branches and agencies of such Relevant Institution
wherever located) to or for the credit or the account of a Borrower against and
on account of the Obligations and liabilities of such Borrower to such Relevant
Institution under this Agreement or under any of the other Credit Documents,
including, without limitation, all interests in Obligations purchased by such
Relevant Institution (if a "Bank") pursuant to Section 11.06(b), and all other
claims of any nature or description arising out of or connected with this
Agreement or any other Credit Document, irrespective of whether or not such
Relevant Institution shall have made any demand hereunder and although said
Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured.
11.03 Notices. Except as otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
telegraphic, telex, telecopier or cable communication) and mailed, telegraphed,
telexed, telecopied, cabled or delivered: if to the Borrowers, at their
respective addresses specified opposite their signatures below; if to any Bank,
at its address (or telecopy number) set forth in its Administrative
Questionnaire; if to the Administrative Agent, at its Notice Office; or, as to
the Borrowers or the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties hereto 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 Administrative Agent. All such
notices and communications shall, when mailed, telegraphed, telexed, telecopied,
or cabled or sent by overnight courier, be effective when deposited in the
mails, delivered to the telegraph company, cable company or overnight courier,
as the case may be, or sent by telex or telecopier, except that notices and
communications to the Administrative Agent and notices and communications sent
by mail to any party, shall not be effective until received.
11.04 Benefit of Agreement. (a) This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties
-39-
hereto; provided, however, that the Borrowers may not assign or transfer any of
their respective rights or obligations hereunder without the prior written
consent of the Banks; and provided, further, that, although any Bank may
transfer, assign or grant participations in its rights hereunder and under the
Notes, such Bank shall remain a "Bank" for all purposes hereunder (and may not
transfer or assign its Commitment hereunder except as provided in Section
11.04(b)) and the transferee, assignee or participant, as the case may be, shall
not constitute a "Bank" hereunder; and provided, further, that no Bank shall
transfer, grant or assign any participation under which the participant shall
have rights to approve any amendment to or waiver of this Agreement except to
the extent such amendment or waiver requires the consent of 100% of the Banks,
as provided in Section 11.12. In the case of any such participation, the
participant shall not have any rights under this Agreement or any of the other
Credit Documents (the participant's rights against such Bank in respect of such
participation to be those set forth in the agreement executed by such Bank in
favor of the participant relating thereto) and all amounts payable by the
Borrowers hereunder shall be determined as if such Bank had not sold such
participation, except that the participant shall be entitled to the benefits of
Sections 2.10, 2.11 and 4.03 of this Agreement to the extent that such Bank
would be entitled to such benefits if the participation had not been
transferred, granted or assigned. Promptly following the consummation of any
participation pursuant to this Section 11.04(a), the Bank entering into such
participation shall promptly notify the Borrowers thereof.
(b) Notwithstanding the foregoing, any Bank may, with prior written
consent of the Guarantor (whose consent shall not be unreasonably withheld),
assign all, or if less than all, a portion equal to at least $5,000,000 in the
aggregate of its Commitment (and related outstanding principal amount of Loans)
hereunder to one or more commercial banks or other financial institutions
engaged in the business of lending money or acquiring debt securities; provided
that (i) at such time Schedule I hereto shall be deemed modified to reflect the
Commitments of such new Bank and of the existing Banks, (ii) upon surrender of
the old Notes, if any, or, upon presentation of evidence to the reasonable
satisfaction of the Administrative Agent (in the Administrative Agent's sole
discretion) of the loss, destruction or theft of such old Notes, and upon
delivery to the Administrative Agent, for the benefit of the Borrower that
issued the old Notes, of an indemnity, in form and substance satisfactory to
such Borrower, made by such assigning Bank and holding such Borrower harmless,
in lieu of any such lost, destroyed or stolen Notes, new Notes will be issued,
at the expense of the Borrower that issued the old Notes, to such new Bank and
to the assigning Bank, such new Notes to be in conformity with the requirements
of Section 2.05 (with appropriate modifications) to the extent needed to reflect
the revised Commitments, (iii) the Administrative Agent shall receive at the
time of each such assignment, from the assigning or the assignee Bank, the
payment of a non-refundable assignment fee of $3,000 and (iv) such new Bank
shall deliver to the Administrative Agent an Administrative Questionnaire. To
the extent of any assignment pursuant to this Section 11.04(b), the assigning
Bank shall be relieved of its obligations hereunder with respect to its assigned
Commitments. To the extent that an assignment of all or any portion of a Bank's
Commitments and related outstanding Obligations pursuant to this Section
11.04(b) would, at the time of such assignment, result in increased costs under
Section 2.10, 2.11 or 4.03 greater than those being charged by the respective
assigning Bank prior to such assignment, then the Borrowers shall not
-40-
be obligated to pay such greater increased costs (although the Borrowers shall
be obligated to pay any other increased costs of the type described above
resulting from changes after the date of the respective assignments).
(c) Notwithstanding anything to the contrary contained herein, each Bank
shall be entitled to pledge its Loans and/or Notes hereunder to a Federal
Reserve Bank in support of borrowings made by such Bank from such Federal
Reserve Bank.
(d) Notwithstanding anything to the contrary contained herein, subject to
the prior written consent of the Guarantor (which shall not be unreasonably
withheld), any Bank (a "Granting Bank"), may grant to a special purpose funding
vehicle (an "SPC"), identified as such in writing from time to time by the
Granting Bank to the Administrative Agent, the Guarantor and the Borrowers, the
option to provide to the Borrowers all or any part of any Loan that such
Granting Bank would otherwise be obligated to make to the Borrower pursuant to
this Agreement; provided that (i) nothing herein shall constitute a commitment
by any SPC to make any Loan, and (ii) if an SPC elects not to exercise such
option or otherwise fails or is unable to provide all or any part of such Loan,
the Granting Bank shall be obligated to make such Loan pursuant to the terms
hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of
the Granting Bank to the same extent, and as if, such Loan were made by such
Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for
any indemnity or payment under this Agreement for which a Bank would otherwise
be liable for so long as, and to the extent, the Granting Bank provides such
indemnity or makes such payment. In furtherance of the foregoing, each Borrower
and the Guarantor hereby agree (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior indebtedness
of any SPC, it will not institute against, or join any other Person in
instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any
State thereof.
11.05 No Waiver; Remedies Cumulative. No failure or delay on the part of
the Administrative Agent or any Bank or the holder of any Note in exercising any
right, power or privilege hereunder under any other Credit Document and no
course of dealing between the Borrowers, the Administrative Agent or any Bank or
the holder of any Note shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, power or privilege hereunder or under any
other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights, powers and remedies herein or in any other Credit Document expressly
provided are cumulative and not exclusive of any rights, powers or remedies
which the Administrative Agent or any Bank or the holder of any Note would
otherwise have. No notice to or demand on the Borrowers in any case shall
entitle the Borrowers to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Administrative
Agent or any Bank or the holder of any Note to any other or further action in
any circumstances without notice or demand.
-41-
11.06 Payments Pro Rata. (a) The Administrative Agent agrees that promptly
after its receipt of each payment from or on behalf of any Borrower in respect
of any Obligations of such Borrower hereunder, it shall distribute such payment
to the Banks pro rata based upon their respective shares, if any, of the
Obligations with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Facility Fees or other Fees, of a sum which with respect to the
related sum or sums received by other Banks is in a greater proportion than the
total amount of such Obligation then owed and due to such Bank bears to the
total amount of such Obligation then owed and due to all of the Banks
immediately prior to such receipt, then such Bank receiving such excess payment
shall purchase for cash without recourse or warranty from the other Banks an
interest in the Obligations of the Borrowers to such Banks in such amount as
shall result in a proportional participation by all the Banks in such amount;
provided, however, that if all or any portion of such excess amount is
thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest;
and provided, further, that a Bank's obligations pursuant to this Section
11.06(b) shall not be interpreted to apply to any portion of the Fee which is
payable to such Bank pursuant to Section 3.01(b) hereof and is not payable to
other Banks because of the Banks' differing Commitment levels.
11.07 Calculations; Computations. All computations of interest and
Facility Fees hereunder shall be made on the basis of a year of 360 days
(365/366 days in the case of interest on Base Rate Loans) for the actual number
of days (including the first day but excluding the last day) occurring in the
period for which such interest or Facility Fees are payable. Notwithstanding the
foregoing, for each day that interest is calculated by reference to the Federal
Funds Rate, such interest shall be computed on the basis of a year of 360 days.
11.08 Governing Law; Submission to Jurisdiction; Venue. (a) This Agreement
and the other Credit Documents and the rights and obligations of the parties
hereunder and thereunder shall be construed in accordance with and be governed
by the law of the State of New York. Any legal action or proceeding against the
Borrowers with respect to this Agreement or any other Credit Document may be
brought in the courts of the State of New York or of the United States for the
Southern District of New York, and, by execution and delivery of this Agreement,
each Borrower hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each Borrower agrees that if at any time its principal place of business
is not in the City and State of New York, it will irrevocably designate, appoint
and empower an agent for purposes of this Section, in the City and State of New
York, as its designee, appointee and agent to receive, accept and acknowledge
for and on its behalf, and in respect of its property, service of any and all
legal process, summons, notices and documents which may be served in any such
action or proceeding. If for
-42-
any reason such designee, appointee and agent shall cease to be available to act
as such, each Borrower agrees to designate a new designee, appointee and agent
in New York City on the terms and for the purposes of this provision
satisfactory to the Administrative Agent. Each Borrower further irrevocably
consents to the service of process out of any of the aforementioned courts in
any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to such Borrower at its address set forth
opposite its signature below, such service to become effective 30 days after
such mailing. Nothing herein shall affect the right of the Administrative Agent,
any Bank or the holder of any Note to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
the Borrowers in any other jurisdiction.
(b) Each Borrower hereby irrevocably waives any objection which it may now
or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
11.09 Payment Denominations. All payments of principal and interest on any
Loan and other amounts to be paid by any Borrower under this Agreement shall be
made in Dollars. The obligation of the Borrowers to make payment in Dollars of
the principal of and interest on the Notes and any other amounts due hereunder
or under any other Credit Document to the Payment Office of the Administrative
Agent as provided in Section 4.02 shall not be discharged or satisfied by any
tender, or any recovery pursuant to any judgment, which is expressed in or
converted into any currency other than Dollars, except to the extent such tender
or recovery shall result in the actual receipt by the Administrative Agent at
its Payment Office on behalf of the Banks or holders of the Notes of the full
amount of Dollars expressed to be payable in respect of the principal of and
interest on the Notes and all other amounts due hereunder or under any other
Credit Document. The obligation of the Borrowers to make payments in Dollars as
aforesaid shall be enforceable as an alternative or additional cause of action
for the purpose of recovery in Dollars of the amount, if any, by which such
actual receipt shall fall short of the full amount of Dollars expressed to be
payable in respect of the principal of and interest on the Notes and any other
amounts due under any other Credit Document, and shall not be affected by
judgment being obtained for any other sums due under this Agreement or under any
other Credit Document.
11.10 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrowers and the
Administrative Agent.
-43-
11.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
11.12 Amendment or Waiver. None of this Agreement or any other Credit
Document nor any terms hereof or thereof may be changed, waived, discharged or
terminated unless such change, waiver, discharge or termination is in writing
signed by the Required Banks; provided, however, that: no such change, waiver,
discharge or termination shall, without the consent of each Bank, (i) extend the
Commitment Termination Date (except as provided in Section 3.03) or the final
maturity of any Loan or Note or reduce the rate or extend the time of payment of
interest or Fees thereon, or reduce the principal amount thereof, or increase
the Commitment of any Bank (except as provided in Section 3.04) over the amount
thereof then in effect (it being understood that a waiver of any Default or
Event of Default or of a mandatory reduction in the Total Commitment shall not
constitute a change in the terms of any Commitment of any Bank), (ii) release
the Guarantor from its obligations under the Guaranty, (iii) amend, modify or
waive any provision of this Section 11.12 or Section 10.06, 11.01, 11.02, 11.04,
11.06 or 11.07, (iv) reduce the percentage specified in the definition of
Required Banks, or (v) consent to the assignment or transfer by the Borrowers of
any of their rights and obligations under this Agreement.
11.13 Survival. All indemnities set forth herein, including, without
limitation, in Sections 2.10, 2.11, 4.03, 10.06 and 11.01, shall survive the
execution and delivery of this Agreement and the Notes and the making and
repayment of the Loans.
11.14 Domicile of Loans. Subject to Section 4.03(b), but notwithstanding
Section 11.04 (b), each Bank may transfer and carry its Loans at, to or for the
account of any office, Subsidiary or Affiliate of such Bank; provided, that each
Bank will use its best efforts not to effect a transfer of its Loans to an
Applicable Lending Office which would give rise to the operation of Section
2.10(a) (ii) or (iii) or 2.10(c) unless in its sole discretion such Bank finds
that such nontransfer would be disadvantageous to it.
11.15 Limitation on Additional Amounts, etc. Notwithstanding anything to
the contrary contained in Sections 2.10, 2.11 or 4.03 of this Agreement, (a) a
Bank shall not be entitled to payment of any amount under any such Section from
a Borrower unless such Bank is seeking payment from other borrowers similarly
situated in respect of the relevant increased costs, Taxes, losses, expenses or
liabilities, reduction in amounts received or receivable or reduction in return
on capital, and (b) unless a Bank gives notice to the Borrowers that they are
obligated to pay an amount under any such Section within six months after the
later of (x) the date such Bank incurs the respective increased costs, Taxes,
loss, expense or liability, reduction in amounts received or receivable or
reduction in return on capital or (y) the date such Bank has actual knowledge of
its incurrence of the respective increased costs, Taxes, loss, expense or
liability, reductions in amounts received or receivable or reduction in return
on capital, then such Bank shall only be entitled to be compensated for such
amount by the Borrowers pursuant to said Section 2.10, 2.11 or 4.03, as the case
may be, to the extent the costs, Taxes, loss, expense or
-44-
liability, reduction in amounts received or receivable or reduction in return on
capital are incurred or suffered on or after the date which occurs six months
prior to such Bank's notice to the Borrowers that it is obligated to pay the
respective amounts pursuant to said Section 2.10, 2.11 or 4.03, as the case may
be. This Section 11.15 shall have no applicability to any Section of this
Agreement other than said Sections 2.10, 2.11 and 4.03.
-45-
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Agreement as of the date first above
written.
Address:
437 Madison Avenue
New York, New York 10022
OMNICOM FINANCE INC.
By: /s/ Dennis E. Hewitt
--------------------------------
Name: Dennis E. Hewitt
Title: Treasurer
OMNICOM CAPITAL INC.
By: /s/ Dennis E. Hewitt
--------------------------------
Name: Dennis E. Hewitt
Title: President and Chief
Executive Officer
OMNICOM FINANCE PLC
By: /s/ Dennis E. Hewitt
--------------------------------
Name: Dennis E. Hewitt
Title: Director
By: /s/ Barry J. Wagner
--------------------------------
Name: Barry J. Wagner
Title: Director
CITIBANK, N.A.
as Administrative Agent
By: /s/ Carolyn A. Kee
--------------------------------
Name: Carolyn A. Kee
Title: Vice President
CITIBANK, N.A.
By: /s/ Carolyn A. Kee
--------------------------------
Name: Carolyn A. Kee
Title: Vice President
JPMORGAN CHASE BANK
By: /s/ William E. Rottino
--------------------------------
Name: William E. Rottino, CFA
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Thomas J. Levy
--------------------------------
Name: Thomas J. Levy
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Brian S. Allen
--------------------------------
Name: Brian S. Allen
Title: Managing Director
HSBC BANK USA
By: /s/ Johan Sorensson
--------------------------------
Name: Johan Sorensson
Title: First Vice President
SANPAOLO IMI S.p.A
By: /s/ Carlo Persico
--------------------------------
Name: Carlo Persico
Title: General Manager
By: /s/ Brian S. Allen
--------------------------------
Name: Robert Wurster
Title: Senior Vice President
SOCIETE GENERALE
By: /s/ Elaine Khalil
--------------------------------
Name: Elaine Khalil
Title: Director
SVENSKA HANDELSBANKEN
By: /s/ Simon Silvester
--------------------------------
Name: Simon Silvester
Title: Head of London Branch
By: /s/ Paul Dreaugae
--------------------------------
Name: Paul Dreaugae
Title: Account Manager
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ Daniel Evans
--------------------------------
Name: Daniel Evans
Title: Managing Director
BARCLAYS BANK PLC
By: /s/ Nicholas Bell
--------------------------------
Name: Nicholas Bell
Title: Director
ABN AMRO BANK, N.V.
By: /s/ David Carrington
--------------------------------
Name: David Carrington
Title: Group Vice President
By: /s/ Bryan Matthews
--------------------------------
Name: Bryan Matthews
Title: Corporate Banking Officer
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ Y. Lillian Kim
--------------------------------
Name: Y. Lillian Kim
Title: Vice President
BBVA BANCO BILBAO VIZCAYA
ARGENTARIA SA
By: /s/ Hector O. Villegas
--------------------------------
Name: Hector O. Villegas
Title: Vice President,
Global Corporate Banking
By: /s/ Miguel A. Lara
--------------------------------
Name: Miguel A. Lara
Title: Vice President,
Global Corporate Banking
FIRSTAR BANK, N.A.
By: /s/ John Franceschi
--------------------------------
Name: John Franceschi
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Donald V. Davis
--------------------------------
Name: Donald V. Davis
Title: Vice President
SUMITOMO MITSUI BANKING
CORPORATION
By: /s/ Leo E. Pagarigan
--------------------------------
Name: Leo E. Pagarigan
Title: Vice President
MELLON BANK, N.A.
By: /s/ Maria N. Sisto
--------------------------------
Name: Maria N. Sisto
Title: Vice President
BANK ONE, NA (MAIN OFFICE CHICAGO)
By: /s/ Mahua Thakurta
--------------------------------
Name: Mahua Thakurta
Title: Associate Director
ALLIED IRISH BANKS, P.L.C.
By: /s/ Michael Barry
--------------------------------
Name: Michael Barry
Title: Senior Manager
BANCA POPOLARE DI BERGAMO-
CREDITO VARESINO
By: /s/ Fausto De Martino
--------------------------------
Name: Fausto De Martino
Title: Funzionario
ROYAL BANK OF SCOTLAND
By: /s/ R. A. Green
--------------------------------
Name: R. A. Green
Title: Corporate Director
WELLS FARGO BANK NATIONAL
ASSOCIATION
By: /s/ Kathleen Rosof
--------------------------------
Name: Kathleen Rosof
Title: Vice President
THE NORTHERN TRUST COMPANY
By: /s/ Russ Rockenbach
--------------------------------
Name: Russ Rockenbach
Title: Vice President
SCHEDULE I
SCHEDULE OF COMMITMENTS
Lenders Commitment
- ------- ----------
CITIBANK, N.A. $200,000,000
JPMORGAN CHASE BANK $175,000,000
FLEET NATIONAL BANK $150,000,000
THE BANK OF NOVA SCOTIA $100,000,000
HSBC BANK USA $100,000,000
SANPAOLO IMI S.p.A. $80,000,000
SOCIETE GENERALE $75,000,000
SVENSKA HANDELSBANKEN $75,000,000
WACHOVIA BANK, NATIONAL ASSOCIATION $75,000,000
BARCLAYS BANK PLC $70,000,000
ABN AMRO INC. $50,000,000
BANK OF TOKYO-MITSUBISHI TRUST COMPANY $50,000,000
BBVA BANCO BILBAO VIZCAYA ARGENTARIA SA $50,000,000
FIRSTAR BANK $50,000,000
PNC BANK, NATIONAL ASSOCIATION $50,000,000
SUMITOMO MITSUI BANKING CORPORATION $50,000,000
MELLON BANK, N.A. $40,000,000
BANK ONE, NA $35,000,000
ALLIED IRISH BANKS, P.L.C. $25,000,000
BANCA POPOLARE DI BERGAMO-CREDITO VARESINO $25,000,000
ROYAL BANK OF SCOTLAND $25,000,000
WELLS FARGO BANK NATIONAL ASSOCIATION $20,000,000
THE NORTHERN TRUST COMPANY $10,000,000
==============
TOTAL $1,580,000,000
-1-
EXHIBIT A-1
FORM OF
NOTICE OF BORROWING
[Date]
Citibank, NA.
as Administrative Agent for the Banks
party to the Credit Agreement
referred to below
Bank Loan Syndications
2 Penn's Way
New Castle, Delaware 19720
Attention: ________________
Ladies and Gentlemen:
The undersigned, [Omnicom Finance Inc.] [Omnicom Capital Inc.] [Omnicom
Finance Plc], refers to the 364-Day Credit Agreement dated as of April 25, 2002
(as amended from time to time, the "Credit Agreement", the terms defined therein
being used herein as therein defined), among the Borrowers referred to therein
(including the undersigned), certain Banks party thereto and Citibank, N.A., as
Administrative Agent for such Banks, and hereby gives you notice, irrevocably,
pursuant to Section 2.03 of the Credit Agreement, that the undersigned hereby
requests a Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such Borrowing (the "Proposed
Borrowing") as required by Section 2.03 of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing (the "Proposed Borrowing
Date") is ________.
(ii) The aggregate principal amount of the Proposed Borrowing is
U.S.$___________.
(iii) The Proposed Borrowing is to consist of [Base Rate Loans]
[Eurocurrency Rate Loans].
EXHIBIT A-1
Page 2
[(iv) The Interest Period for the Proposed Borrowing is ___________
month[s].](2)
The undersigned hereby certifies that the following statements are true on
the date hereof:
[(A) The representations and warranties contained in Section 6 of
the Credit Agreement are correct, before and after giving effect to the
Proposed Borrowing and to the proposed application of the proceeds
thereof, as though made on and as of the date of this notice.]
[(B) No Default or Event of Default has occurred and is continuing,
or would result from the Proposed Borrowing or from the proposed
application of the proceeds thereof.]
[(C) The Proposed Borrowing is of a Eurocurrency Rate Loan which, if
given effect, will not increase the aggregate amount of outstanding
Eurocurrency Rate Loans of any Bank.](3)
If any of the [representations and warranties referred to or any of the]
statements made above ceases to be true and correct at and as of any time before
the Proposed Borrowing on the Proposed Borrowing Date, the undersigned will
immediately give you notice to that effect.
Very truly yours,
[OMNICOM FINANCE INC.]
[OMNICOM CAPITAL INC.]
[OMNICOM FINANCE PLC]
By ________________________
Title:
- ----------
(2) To be included for a Proposed Borrowing of Eurocurrency Rate Loans.
(3) Both clauses (A) and (B), or clause (C), must be included.
EXHIBIT A-2
FORM OF NOTICE OF ELECTION OF TERM OPTION
[Date]
Citibank, N.A., as Agent
Bank Loan Syndications
2 Penn's Way
New Castle, Delaware 19720
Attention: ___________
Ladies and Gentlemen:
The undersigned, Omnicom Group, Inc. (the "Guarantor"), refers to the
364-Day Credit Agreement dated as of April 25, 2002 (said agreement, as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement";
capitalized terms defined therein being used herein as therein defined), among
the undersigned, Omnicom Finance Inc., Omnicom Finance Plc and Omnicom Capital
Inc., each as a Borrower, Citibank, N.A., in its capacity as Administrative
Agent, and the Banks parties thereto.
In accordance with Section 3.05 of the Credit Agreement, the Guarantor
hereby notifies you that it elects to convert the Loans outstanding as of the
Commitment Termination Date (___________ __, 200_ ) to Term Loans payable on [
___________ __, 200_ (the Final Maturity Date)] [___________ __, 200_ (a date
prior to the Final Maturity Date)]. The Term Loans will be [Base Rate
Loans][Eurocurrency Rate Loans with an initial Interest Period of ____
month[s]]. The Company hereby certifies that, on and as of the date hereof, no
Default or Event of Default has occurred and is continuing.
Very truly yours,
OMNICOM GROUP, INC.
By_________________________
Name:
Title:
EXHIBIT B
FORM OF TERM NOTE
PROMISSORY NOTE
U.S. $_________________ Dated _________ __, 200_
FOR VALUE RECEIVED, the undersigned, [OMNICOM FINANCE INC., a corporation
organized and existing under the laws of Delaware][OMNICOM CAPITAL INC., a
corporation organized and existing under the laws of Connecticut][OMNICOM
FINANCE PLC, a company organized and existing under the laws of England and
Wales] (the "Borrower"), hereby unconditionally promises to pay to the order of
______________ (the "Bank") for the account of its Applicable Lending Office the
principal sum of _______________________ U.S. DOLLARS (U.S. $_________________),
on __________, ______ (or, if such date is not a Business Day as defined in the
Credit Agreement referred to below, the immediately preceding Business Day), for
the account of its Applicable Lending Offices provided for by the Credit
Agreement referred to below, at the Payment Office of the Administrative Agent,
in Dollars and in immediately available funds, free and clear of and without
deduction for Taxes or other offsets, to the extent provided in the Credit
Agreement.
The Borrower further promises to pay interest on the unpaid principal
amount of this Note, at such account, in like money and funds, from the date
hereof until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement referred to
below.
This Note is one of the Term Notes referred to in, and is entitled to the
benefits and is subject to the terms, conditions and limitations of, the 364-Day
Credit Agreement (as the same may be amended, modified and supplemented and in
effect from time to time, the "Credit Agreement") dated as of April 25, 2002,
among the Borrowers referred to therein, the Bank, the other Banks referred to
therein and Citibank, N.A., as Administrative Agent for the Banks (the
"Administrative Agent"). Capitalized terms used but not defined in this Note
shall have the respective meanings assigned to them in the Credit Agreement.
This Note is guaranteed pursuant to the Guaranty. The Credit Agreement,
among other things, contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events and also for optional and mandatory
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
EXHIBIT B
Page 2
This Note shall be governed by, and construed in accordance with, the law
of the State of New York.
[OMNICOM FINANCE INC.]
[OMNICOM CAPITAL INC.]
[OMNICOM FINANCE PLC]
By_________________________
Name:
Title:
EXHIBIT C-1
FORM OF OPINION OF COUNSEL (NEW YORK) - OFI, OCI and Guarantor
[Date]
To the Persons Listed on
Annex I Hereto
Ladies and Gentlemen:
We have acted as special New York counsel for Omnicom Finance Inc., a
corporation organized and existing under the laws of the State of Delaware
("OFI"), Omnicom Capital Inc., a corporation organized and existing under the
laws of the State of Connecticut ("OCI"), Omnicom Finance Plc, a company
organized and existing under the laws of England and Wales ("OFP" and together
with OFI and OCI, individually, a "Borrower" and collectively, the "Borrowers")
and Omnicom Group Inc., a corporation organized and existing under the laws of
the State of New York (the "Guarantor"), in connection with the execution and
delivery of the following documents (collectively, the "Credit Documents"):
(a) the 364-Day Credit Agreement, dated as of April 25, 2002, among
the Borrowers, the banks parties thereto (the "Banks") and Citibank, NA.,
as the Administrative Agent (the "Credit Agreement");
(b) the Notes of OFI and OCI (if any), to be delivered pursuant to
the Credit Agreement; and
(c) the Guaranty of the Guarantor, dated as of April 25, 2002,
delivered pursuant to Section 5.01(d) of the Credit Agreement (the
"Guaranty").
This opinion is delivered to you pursuant to Section 5.01(b) of the Credit
Agreement. Terms used herein which are defined in the Credit Agreement shall
have the respective meanings set forth in the Credit Agreement, unless otherwise
defined herein.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of each of the Credit
Documents. 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 (other
than OFI, OCI and the Guarantor) signing all documents in connection with which
this opinion is rendered are genuine and authorized; (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
EXHIBIT C-1
Page 2
the representations and warranties of the Borrowers and the Guarantor in the
applicable Credit Documents and have relied upon certificates and oral or
written statements and other information of public officials, and officers and
representatives of the Borrowers and the Guarantor. For purposes of the opinion
set forth in the paragraph numbered 1 below, we have relied solely upon copies
of (i) certificates of, and (ii) the organizational documents as certified by,
public officials as of the dates and in the jurisdictions listed on Annex II
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) each party to the Credit Documents other than OFI, OCI and the
Guarantor (individually, the "Other Party" and collectively, the "Other
Parties") 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) each of the Other Parties
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 each of the Other Parties have been duly authorized
by all requisite corporate action on the part of each Other Party; (iv) the
Credit Documents have been duly executed and delivered by each of the Other
Parties; and (v) the execution, delivery and performance of the Credit Documents
by each of the Other Parties do not and will not violate the charter, by-laws or
other organizational documents of any of the Other Parties. We have further
assumed, with your permission and without any independent investigation or
verification of any kind, that each of the Credit Documents constitutes the
valid and legally binding obligations of each Other Party, enforceable against
such Other Party in accordance with its terms. Furthermore, in giving the
opinions set forth in paragraphs numbered 3 and 4 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 of the Guarantor, OFI, OCI and the other designated subsidiaries
of the Guarantor listed on Annex III hereto (the "Designated Subsidiaries") (i)
is a duly organized and validly existing corporation in good standing under the
laws of the jurisdiction of its incorporation listed on Annex II hereto and (ii)
has the power and authority to own its property and assets and to transact the
business in which it is engaged.
2. Each of OFI, OCI and the Guarantor has the corporate power to execute,
deliver and perform the terms and provisions of each of the Credit Documents to
which it is a party and has taken all necessary corporate action to authorize
the execution, delivery and performance by it of each of such Credit Documents.
Each of OFI, OCI and the Guarantor has duly executed and delivered each of the
Credit Documents to which it is a party. Each of the Credit Documents to which
the Guarantor, OFI or OCI is a party constitutes its legal, valid and binding
obligation enforceable against it in accordance with the terms of such Credit
Document.
3. Neither the execution, delivery nor performance by OFI, OCI or the
Guarantor of the Credit Documents to which it is a party, nor compliance by it
with the terms and provisions thereof, (i) will contravene any provision of any
law, statute,
EXHIBIT C-1
Page 3
rule or regulation (including, without limitation, Regulation T, U or 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 OFI, OCI or the Guarantor or (ii)
will violate any provision of the Certificate of Incorporation or By-Laws of
OFI, OCI or the Guarantor.
4. 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 OFI, OCI or the Guarantor is required to authorize, or is required
in connection with, (i) the execution, delivery and performance by OFI, OCI or
the Guarantor, respectively, of any Credit Document to which OFI, OCI or the
Guarantor is a party or (ii) the enforceability of any such Credit Document in
accordance with its terms against OFI, OCI or the Guarantor.
5. None of the Guarantor, OFI or OCI is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
6. None of the Guarantor, OFI or OCI is a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
7. The choice of New York law as the governing law of each of the Credit
Documents is, under the laws of the State of New York, a valid choice of law.
8. The consent by OFI and OCI in Section 11.08 of the Credit Agreement,
and by the Guarantor in paragraph 18 of the Guaranty, 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 Documents 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 Documents in the
event of a nonmaterial default or (ii) the enforceability of any provision of
the Credit Documents relating to cumulation of remedies or waiving the remedy of
specific performance.
B. We express no opinion as to the enforceability of any contractual
provision in the Credit Documents as to waiver of any procedural right,
including, without limitation, (i) the waiver of setoff, counterclaim or other
defense in Section 4.03(a) of the Credit Agreement and in the final sentence of
paragraph 1 of the Guaranty, (ii) the second sentence of Section 11.08 (a) of
the Credit Agreement and the second sentence of paragraph 18 of the Guaranty,
insofar as such sentences relate to the subject matter jurisdiction of the
United States District Court for the Southern District of New
EXHIBIT C-1
Page 4
York to adjudicate any controversy related to any of the Credit Documents, and
(iii) the waiver of inconvenient forum set forth in Section 11.08(b) of the
Credit Agreement and paragraph 18 of the Guaranty with respect to proceedings in
the United States District Court for the Southern District of New York.
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 11.01 of the
Credit Agreement (and any similar provisions in any of the other Credit
Documents), to the extent that these may be limited (i) in the case of
litigation against OFI, OCI or the Guarantor 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; and (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.
D. Furthermore, no opinion is given herein as to:
(i) the enforceability of any right or obligation to the extent that
the same has been varied by course of dealing or performance; or
(ii) paragraph 3(a) of the Guaranty, and clause (b) of paragraph 4
of the Guaranty to the extent that it relates to action contemplated by
paragraph 3(a) of the Guaranty, which may not be enforceable to the extent
that the Guaranteed Obligations are materially altered; or
(iii) the enforceability of provisions in the Credit Documents to
the effect that terms may not be waived or modified except in writing,
which may be limited under certain circumstances; or
(iv) the effect of the laws of any jurisdiction in which any Bank is
located (other than the State of New York) that limit the interest, fees
or other charges such Bank may impose; or
(v) the enforceability of the provisions of Section 11.09 of the
Credit Agreement or paragraph 19 of the Guaranty (A) to the extent that a
judgment not in Dollars is obtained in respect of the Credit Agreement in
a jurisdiction other than the United States of America and the respective
Borrower or the Guarantor 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
(vi) paragraph 16 of the Guaranty; or
(vii) the enforceability of the right of setoff provided for in
Section 11.02 of the Credit Agreement (A) in respect of an interest in
Obligations purchased by a Bank pursuant to Section 11.06(b), to the
extent the relevant purchase does not give rise to a direct obligation of
OFI or OCI to such Bank, or (B) insofar as that right relates to setoff of
unmatured Obligations or of
EXHIBIT C-1
Page 5
obligations owed to the Guarantor by Affiliates of the Banks or by
Affiliates of the Administrative Agent.
We are members of the Bar of the State of New York and express no opinion
as to the laws of any jurisdiction other than those of the laws of the State of
New York, the General Corporation Law of the State of Delaware and the federal
laws of the United States of America.
This opinion is rendered solely to the persons listed on Annex I hereto by
us as special counsel to OFI, OCI and the Guarantor in connection with the
transactions contemplated by the Credit Documents. This opinion may not be
relied upon in any manner or for any 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 the persons listed on Annex I hereto of changes which thereafter may be
brought to our attention.
Very truly yours,
EXHIBIT C-1
Page 6
ANNEX I
[LIST OF ADDRESSEES]
EXHIBIT C-1
Page 7
ANNEX II
Type and Date of
Name and Jurisdiction Certificate in Jurisdiction
of Incorporation of Incorporation
--------------------- ---------------------------
EXHIBIT C-1
Page 8
ANNEX III
Designated Subsidiaries
-----------------------
EXHIBIT C-2
FORM OF OPINION OF COUNSEL (NEW YORK) - BANKS
[Date]
To the Banks party to the
Credit Agreement referred to
below and Citibank, N.A.,
as Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to Citibank, N.A. ("Citibank")
in connection with (i) the 364-Day Credit Agreement, dated as of April 25, 2002,
among Omnicom Finance Inc. ("OFI"), Omnicom Capital Inc. ("OCI"), Omnicom
Finance Plc ("OFP" and, together with OFI and OCI, individually, a "Borrower"
and collectively, the "Borrowers"), the financial institutions named therein
(the "Banks") and Citibank, as Administrative Agent, and (ii) the various other
agreements, instruments and other documents referred to in the next following
paragraph. Except as otherwise provided herein, terms defined in the Credit
Agreement are used herein as defined therein. This opinion letter is being
delivered pursuant to Section 5.01(b) of the Credit Agreement.
In rendering the opinions expressed below, we have examined the following
agreements and instruments (the "Financing Documents"):
(a) the Credit Agreement;
(b) the Notes executed and delivered pursuant to the Credit Agreement on
the date hereof; and
(c) the Guaranty of Omnicom Group Inc. (the "Guarantor" and, together
with the Borrowers, the "Obligors"), dated as of April 25, 2002,
delivered pursuant to Section 5.01(d) of the Credit Agreement (the
"Guaranty").
In addition, we have assumed that the making and performance and the
consummation of the transactions contemplated by the Financing Documents by OFP
do not violate, and the Financing Documents to which OFP is a party are not
unenforceable under, the laws or public policy of England.
In rendering the opinions expressed below, we have assumed, with respect
to all of the documents referred to in this opinion letter, that:
(i) such documents have been duly authorized by, have been duly executed
and delivered by, and (except to the extent set forth in the
opinions below as to the Obligors) constitute legal, valid, binding
and enforceable obligations of, all of the parties to such
documents;
(ii) all signatories to such documents have been duly authorized; and
EXHIBIT C-2
Page 2
(iii) all of the parties to such documents are duly organized and validly
existing and have the power and authority (corporate or other) to
execute, deliver and perform such documents.
Based upon and subject to the foregoing and subject also to the comments
and qualifications set forth below, and having considered such questions of law
as we have deemed necessary as a basis for the opinions expressed below, we are
of the opinion that each of the Financing Documents constitutes the legal, valid
and binding obligation of each Obligor stated to be a party thereto, enforceable
against such Obligor in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or other similar laws relating to or affecting the rights of
creditors generally (and by the possible judicial application of English laws or
governmental action affecting the rights of creditors generally to the
obligations of OFP) and except as the enforceability of the Financing Documents
is subject to the application of general principles of equity (regardless of
whether considered in a proceeding in equity or at law), including, without
limitation, (a) the possible unavailability of specific performance, injunctive
relief or any other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
The foregoing opinion is subject to the following comments and
qualifications:
(A) The enforceability of Section 11.01 of the Credit Agreement (and
any similar provisions in any of the other Financing Documents) may be
limited by (i) laws rendering unenforceable indemnification contrary to
federal or state securities laws and the public policy underlying such
laws and (ii) 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.
(B) Paragraph 3(a) of the Guaranty, and clause (b) of paragraph 4 of
the Guaranty to the extent that it relates to action contemplated by
paragraph 3(a) of the Guaranty, may not be enforceable to the extent that
the Guaranteed Obligations are materially altered.
(C) The enforceability of provisions in the Financing Documents to
the effect that terms may not be waived or modified except in writing may
be limited under certain circumstances.
(D) We express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Bank is located (other than the State of New
York) that limit the interest, fees or other charges such Bank may impose,
(ii) the second sentence of Section 11.08(a) of the Credit Agreement and
the second sentence of paragraph 18 of the Guaranty, insofar as such
sentences relate to the subject matter jurisdiction of the United States
District Court for the Southern District of New York to adjudicate any
controversy related to any of the Financing Documents, (iii) the waiver of
inconvenient forum set forth in Section 11.08(b) of the Credit Agreement
and paragraph 18 of the Guaranty with respect to proceedings in the United
States District Court for the Southern District of New
EXHIBIT C-2
Page 3
York, (iv) the last sentence of Section 11.09 of the Credit Agreement and
the last sentence of paragraph 19 of the Guaranty or (v) paragraph 16 of
the Guaranty.
The foregoing opinions are limited to matters involving the federal laws
of the United States of America and the law of the State of New York, and we do
not express any opinion as to the laws of any other jurisdiction.
At the request of our client, this opinion letter is, pursuant to Section
5.01(b) of the Credit Agreement, provided to you by us in our capacity as
special New York counsel to Citibank and may not be relied upon by any Person
for any purpose other than in connection with the transactions contemplated by
the Credit Agreement without, in each instance, our prior written consent.
Very truly yours,
EXHIBIT C-3
FORM OF OPINION OF COUNSEL (NEW YORK) - OFP
[Date]
To the Persons Listed on
Annex I Hereto
Ladies and Gentlemen:
We have acted as special New York counsel for Omnicom Finance Plc, a
company organized and existing under the laws of England and Wales ("OFP"), in
connection with the execution and delivery of the following documents
(collectively, the "Credit Documents"):
(a) the 364-Day Credit Agreement, dated as of April 25, 2002, among
Omnicom Finance Inc., a corporation organized and existing under the laws
of the State of Delaware, Omnicom Capital Inc., a corporation organized
under the laws of the State of Connecticut, and OFP, as the Borrowers, the
banks parties thereto (the "Banks") and Citibank, N.A., as the
Administrative Agent (the "Credit Agreement"); and
(b) the Notes of OFP (if any), to be delivered pursuant to the
Credit Agreement.
This opinion is delivered to you pursuant to Section 5.01(b) of the Credit
Agreement. Terms used herein which are defined in the Credit Agreement shall
have the respective meanings set forth in the Credit Agreement, unless otherwise
defined herein.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of each of the Credit
Documents. 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 (other
than OFP) signing all documents in connection with which this opinion is
rendered are genuine and authorized; (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 Borrowers and the Guarantor in the applicable Credit
Documents and have relied upon certificates and oral or written statements and
other information of public officials, and officers and representatives of the
Borrowers and the Guarantor.
EXHIBIT C-3
Page 2
In rendering the opinions expressed below, we have assumed, with your
permission and without any independent investigation or verification of any
kind, that: (i) each party to the Credit Documents other than OFP (individually,
the "Other Party" and collectively, the "Other Parties") 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) each of the Other Parties 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
each of the Other Parties has been duly authorized by all requisite corporate
action on the part of each Other Party; (iv) the Credit Documents have been duly
executed and delivered by each of the Other Parties; and (v) the execution,
delivery and performance of the Credit Documents by each of the Other Parties
does not and will not violate the charter, by-laws or other organizational
documents of any of the Other Parties. We have further assumed, with your
permission and without any independent investigation or verification of any
kind, that each of the Credit Documents constitutes the valid and legally
binding obligations of each Other Party, enforceable against such Other Party in
accordance with its terms. Furthermore, in giving the opinions set forth in
paragraphs numbered 2 and 3 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 of the Credit Documents to which OFP is a party constitutes its
legal, valid and binding obligation enforceable against OFP in accordance with
the terms of such Credit Document.
2. Neither the execution, delivery or performance by OFP of the Credit
Documents to which it is a party, nor compliance by it with the terms and
provisions thereof, will contravene any provision of any law, statute, rule or
regulation applicable to OFP (including, without limitation, Regulation T, U and
X of the Board of Governors of the Federal Reserve System) of the United States
of America or the State of New York.
3. 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 OFP, is required to authorize, or is required in connection with,
(i) the execution, delivery and performance by OFP of any Credit Document to
which OFP is a party or (ii) the enforceability of any such Credit Document in
accordance with its terms against OFP.
4. The choice of New York law as the governing law of each of the Credit
Documents is, under the laws of the State of New York, a valid choice of law.
5. The consent by OFP in Section 11.08 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, except that we express no opinion as to the
enforceability of any consent to jurisdiction insofar as such consent relates to
the subject matter jurisdiction of the United States Court for the Southern
District of New York to adjudicate any controversy related to the Credit
Documents.
EXHIBIT C-3
Page 3
Our opinions are subject to the qualifications that:
A. The enforceability of the Credit Documents 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 (and by possible judicial application of English or other
foreign laws or governmental action affecting the rights of creditors generally
to the obligations of OFP), 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 Documents in the
event of a nonmaterial default, or (ii) the enforceability of any provision of
the Credit Documents 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 Documents as to waiver of any procedural right,
including, without limitation, (i) the waiver of setoff, counterclaim or other
defense in Section 4.03(a) of the Credit Agreement, (ii) the second sentence of
Section 11.08(a) of the Credit Agreement, insofar as such sentence relates to
the subject matter jurisdiction of the United States District Court for the
Southern District of New York to adjudicate any controversy related to any of
the Credit Documents, and (iii) the waiver of inconvenient forum set forth in
Section 11.08(b) of the Credit Agreement with respect to proceedings in the
United States District Court for the Southern District of New York.
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 11.01 of the
Credit Agreement (and any similar provisions in any of the other Credit
Documents) to the extent that these may be limited (i) in the case of litigation
against OFP 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 and (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 involved gross negligence, recklessness, willful
misconduct or unlawful conduct.
D. Furthermore, no opinion is given herein as to:
(i) the enforceability of any right or obligation to the extent that
the same has been varied by course of dealing or performance; or
(ii) the enforceability of the provisions of Section 11.09 of the
Credit Agreement (A) to the extent that a judgment not in Dollars is
obtained in respect of the Credit Agreement in a jurisdiction other than
the United States of America and the Borrower pays such judgment or (B)
insofar as those provisions contemplate an alternative or additional cause
of action for a claim that may have been merged with claims covered by an
earlier judgment; or
EXHIBIT C-3
Page 4
(iii) the enforceability of provisions in the Credit Documents to
the effect that terms may not be waived or modified except in writing,
which may be limited under certain circumstances; or
(iv) the effect of the laws of any jurisdiction in which any Bank is
located (other than the State of New York) that limit the interest, fees
or other charges such Bank may impose; or
(v) the enforceability of the right of setoff provided for in
Section 11.02 of the Credit Agreement (A) in respect of an interest in
Obligations purchased by a Bank pursuant to Section 11.06(b), to the
extent the relevant purchase does not give rise to a direct obligation of
OFP to such Bank, or (B) insofar as that right relates to setoff of
unmatured Obligations or of obligations owed to OFP by Affiliates of the
Banks or by Affiliates of the Administrative Agent.
E. The opinion set forth in paragraph numbered 1 above is subject to
possible judicial action giving effect to governmental actions on foreign laws
affecting creditors' rights.
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 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.
This opinion is rendered solely to the persons listed on Annex I hereto by
us as special New York counsel to OFP in connection with the transactions
contemplated by the Credit Documents. This opinion may not be relied upon in any
manner or for any purpose, or furnished to 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 the persons
listed on Annex I hereto of changes which thereafter may be brought to our
attention.
Very truly yours,
EXHIBIT C-3
Page 5
ANNEX I
[LIST OF ADDRESSEES]
EXHIBIT C-4
FORM OF OPINION OF COUNSEL (UNITED KINGDOM) - OFP
TO: The Banks named as parties to the
Credit Agreement referred to below and
Citibank, N.A., as Administrative
Agent
2002
Ladies and Gentlemen
Omnicom Finance Plc
We have acted as special English lawyers for Omnicom Finance Plc, a company
organised and existing under the laws of England and Wales ("Omnicom Plc"), in
connection with its authorisation of the execution and delivery of the following
documents (collectively, the "Credit Documents"):
(a) the 364-Day Credit Agreement dated as of April 25, 2002 between
Omnicom Finance Inc., Omnicom Plc, Omnicom Capital Inc.
(collectively, the "Borrowers"), the financial institutions
expressed to be parties thereto (the "Banks") and Citibank, N.A., as
Administrative Agent (the "Credit Agreement"); and
(b) the Notes of Omnicom Plc, if any, to be delivered pursuant to
Section 2.05 of the Credit Agreement.
This opinion is delivered to you pursuant to Section 5.01(b) of the Credit
Agreement. Terms used herein which are defined in the Credit Agreement shall
have the respective meanings set forth in the Credit Agreement, unless otherwise
defined herein.
1 Documents Reviewed and Assumptions Made
In connection with this opinion, we have examined the originals, or
certified, conformed or reproduction copies of the Credit Agreement
(including the Exhibits thereto), and such records and other documents as
we have deemed necessary as the basis for the opinions hereinafter
expressed.
In our examination of the documents referred to above and for the purpose
of rendering this opinion, we have assumed:-
EXHIBIT C-4
Page 2
1.1 the accuracy of all certificates referred to above, the genuineness of all
signatures on all documents referred to above or on the originals thereof,
and the conformity to original documents of all copies;
1.2 that the parties to the Credit Agreement other than Omnicom Plc have the
corporate power and authority to enter into and perform each of the Credit
Documents to which they are parties and that each of such Credit Documents
has been duly authorised, executed and delivered by each such other party
in accordance with all applicable laws;
1.3 that, subject to the position under English law being as set out in our
opinion, the Credit Documents are legal, valid and binding obligations of
Omnicom Plc under the law of New York; and
1.4 that the information disclosed by our search on [ ] 2002 at the Registrar
of Companies for England and Wales and enquiry on [ ] 2002 at the Central
Registry of Winding Up Petitions in relation to Omnicom Plc (which did not
disclose the existence of any petition or resolution to wind up Omnicom
Plc or to appoint an administrator for Omnicom Plc) was then accurate and
has not since then been altered and that such search and enquiry did not
fail to disclose any matters relevant for the purposes of this opinion.
We have not sought independently to verify any of the above assumptions.
We have also relied upon two certificates (the "Certificate" and the
"Director's Certificate" respectively) of a Director and the Secretary of
Omnicom Plc as to certain factual matters. Copies of the Certificate and
the Director's Certificate are attached to this letter. We have not sought
independently to verify the accuracy or completeness of the Certificate or
the Director's Certificate.
2 Opinion
Based upon the foregoing, and subject to the qualifications and further
assumptions set forth in section 3 of this letter, we are of the opinion
that:
2.1 Omnicom Plc (i) is a validly existing public limited company in "good
standing" (as defined in paragraph 3.5 below) 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 in any jurisdiction within England and Wales.
2.2 Omnicom Plc 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
EXHIBIT C-4
Page 3
it under the Credit Agreement. Omnicom Plc has duly executed the Credit
Agreement. When the Notes are signed by one of the Directors of Omnicom
Plc, whose names are set out in Appendix A to the Director's Certificate,
given by Omnicom Plc pursuant to Section 5.01(a) of the Credit Agreement,
such Notes will have been validly executed by Omnicom Plc.
2.3 The execution, delivery and performance by Omnicom Plc 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: (i) not contravene any provision of any law,
statute, rule or regulation of England and Wales; and (ii) not violate any
provision of the Memorandum or Articles of Association of Omnicom Plc.
2.4 No order, consent, approval, licence, authorisation or validation of, or
filing, recording or registration with (except as have been obtained or
made prior to the date hereof), or exemption by, any governmental or
public body or authority of or in England and Wales, is required to
authorise, or is required in connection with: (i) the execution, delivery
and performance by Omnicom Plc of any Credit Document to which Omnicom Plc
is expressed to be a party; (ii) the borrowing by Omnicom Plc under the
Credit Agreement; or (iii) the enforceability of any such Credit Document
against Omnicom Plc.
2.5 If such matters were raised before them, the English Courts, in a properly
presented case, would give effect to the choice of New York law as the
governing law of each of the Credit Documents and to the consent by
Omnicom Plc, in Section 11.08 of the Credit Agreement to the jurisdiction
of courts sitting in the State of New York.
3 Qualifications
This opinion is also subject to the qualifications set out below.
3.1 We express no opinion as to any law other than the law of England and
Wales in force as at the date hereof and we express no opinion as to
matters of fact.
3.2 The obligations of Omnicom Plc under the Credit Documents will be subject
to any laws from time to time in effect relating to insolvency,
administration, bankruptcy, liquidation or any other laws or legal
procedures affecting generally the enforcement of creditors' rights, as
well as the principles of equity.
3.3 The search at the Registrar of Companies referred to in paragraph 1.4 is
not capable of conclusively revealing whether or not certain events have
occurred, including 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
EXHIBIT C-4
Page 4
immediately filed with the Registrar of Companies and, when filed, may not
be immediately available for public inspection.
3.4 The enquiry at the Central Registry of Winding Up Petitions referred to in
paragraph 1.4 relates only to a compulsory winding-up and is not capable
of conclusively revealing whether or not a petition in respect of a
compulsory winding-up has been presented since details of a petition may
not have been immediately entered on the records of the Central Registry
or, in the case of a petition presented to a County Court, may not have
been notified to the Central Registry or entered on such records at all.
3.5 There is no concept of "good standing" as such under English company law.
Accordingly, the reference to "good standing" in paragraph 2.1 above
should be taken to mean only that our search referred to above of records
of the Registrar of Companies for England and Wales and enquiry of the
Central Office of Winding Up Petitions did not reveal any appointment of,
or resolution or petition to appoint, a liquidator, administrator or
administrative receiver of Omnicom Plc, or that Omnicom Plc is delinquent
in filing its statutory annual directors' report and accounts, or any
notification by the Registrar of Companies of intention to strike Omnicom
Plc's name off the Register of Companies.
3.6 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.
3.7 Our opinions in paragraphs 2.3 and 2.4 above are based on and subject to
the further assumption that all Loans made to Omnicom Plc pursuant to the
Credit Agreement will be made by persons who are: (i) authorised persons
(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 Act 2000 (Regulated Activities) Order 2001.
The opinions expressed herein may not be relied upon in any manner or used for
any purpose by any person other than in relation to the Credit Documents by the
persons to
EXHIBIT C-4
Page 5
whom they are addressed. This opinion shall be governed by and construed in
accordance with English Law.
Yours faithfully
OMNICOM FINANCE PLC
Certificate
We the undersigned, being a duly appointed Director and the duly appointed
Secretary of Omnicom Finance Plc ("Omnicom Plc") HEREBY CERTIFY as follows:-
1 This Certificate is given to Macfarlanes for their use and reliance in
connection with the legal opinion to be delivered by them pursuant to
Section 5.01(b) of the 364-Day Credit Agreement dated as of April 25, 2002
between Omnicom Finance Inc., Omnicom Plc, and Omnicom Capital Inc.
(collectively, the "Borrowers"), the financial institutions expressed to
be parties thereto (the "Banks") and Citibank, N.A., as Administrative
Agent (the "Credit Agreement").
2 We refer to the Director's Certificate delivered by Omnicom Plc pursuant
to Section 5.01(c)(iii) of the Credit Agreement, a copy of which is
attached to this Certificate. We hereby confirm that the matters certified
by paragraphs 2, 3, 4, 5 and 7 of that Certificate are true and correct.
3 Omnicom Plc's business as currently conducted consists of lending and
advancing money to members of the group of companies comprised by Omnicom
Group Inc., its subsidiaries and affiliated entities; borrowing money from
banks and other institutions which carry on business mainly as lenders of
money and/or from Omnicom Group Inc. and its other subsidiaries, in order
to finance such lending; group treasury transactions, including management
of group currency and interest rate exposures; and activities related or
incidental to the activities described above. Omnicom Plc's assets consist
wholly or mainly of cash and debts owed to Omnicom Plc and its profits
consist wholly or mainly of interest income less interest and
administrative expenses.
4 There are no pending actions, suits or proceedings by or against Omnicom
Plc nor, to the best of our knowledge and belief, are any such actions,
suits or proceedings threatened.
Dated: 2002
................................................
Director
................................................
Secretary
EXHIBIT D-1
OMNICOM FINANCE INC.
Officers' Certificate
I, the undersigned, ________________________________ of Omnicom Finance
Inc., a corporation organized and existing under the laws of Delaware ("OFI"),
DO HEREBY CERTIFY that:
1. This Certificate is furnished pursuant to Section 5.01(c)(i) of the
364-Day Credit Agreement, dated as of April 25, 2002, among OFI, Omnicom Capital
Inc., Omnicom Finance Plc, the Banks party thereto and Citibank, N.A., as
Administrative Agent (such Credit Agreement, as in effect on the date of this
Certificate, being herein called the "Credit Agreement"). Unless otherwise
defined herein, capitalized terms used in this Certificate have the meanings
assigned to those terms in the Credit Agreement.
2. The persons named below have been duly elected, have duly qualified as
and at all times since _____________(4) (to and including and date hereof) have
been officers of OFI, holding the respective offices below set opposite their
names, and the signatures below set opposite their names are their genuine
signatures.
Name(5) Office Signature
------- ------ ---------
- ------------------- ------------------ ------------------
- ------------------- ------------------ ------------------
- ------------------- ------------------ ------------------
- ------------------- ------------------ ------------------
3. Attached hereto as Exhibit A is a copy of the Certificate of
Incorporation of OFI as filed in the office of the Secretary of State of the
State of Delaware on __________________, 200_, together with all amendments
thereto adopted through the date hereof.
4. Attached hereto as Exhibit B is a true and correct copy of the By-Laws
of OFI as in effect on ____________________,(6) together with all amendments
thereto adopted through the date hereof.
5. Attached hereto as Exhibit C is a true and correct copy of resolutions
duly adopted by the Board of Directors of OFI at a meeting on _________, at
which a quorum was present and acting throughout, which resolutions have not
been
- ----------
(4) Insert a date prior to the time of any corporate action relating to the
Credit Agreement.
(5) Include name, office and signature of each officer who will sign any
Credit Document, including the officer who will sign the certification at
the end of this certificate.
(6) Insert same date as in paragraph 2 of this certificate.
EXHIBIT D-1
Page 2
revoked, modified, amended or rescinded and are still in full force and effect.
Except as attached hereto as Exhibit C, no resolutions have been adopted by the
Board of Directors of OFI which deal with the execution, delivery or performance
of any of the Credit Documents.
6. On the date hereof, the representations and warranties of OFI contained
in Section 6 of the Credit Agreement are true and correct, both before and after
giving effect to each Borrowing, if any, to occur on the date hereof and the
application of the proceeds thereof.
7. On the date hereof, no Default or Event of Default has occurred and is
continuing or would result from any Borrowing to occur on the date hereof or
from the application of the proceeds thereof.
8. I know of no proceeding for the dissolution or liquidation of OFI or
threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this _______ day of
[___________], 2002.
OMNICOM FINANCE INC.
___________________________
Name:
Title:
EXHIBIT D-1
Page 3
I, the undersigned, [Secretary/Assistant Secretary] of OMNICOM FINANCE INC.
("OFI") DO HEREBY CERTIFY that:
1. [Insert name of Person making the above certifications] is the duly
elected and qualified ___________ of OFI and the signature above is his/her
genuine signature.
2. The certifications made by [Name] in items 2, 3, 4 and 5 above are true
and correct.
3. I know of no proceeding for the dissolution or liquidation of OFI or
threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this ________ day of
[____________], 2002.
OMNICOM FINANCE INC.
___________________________
Name:
Title:
EXHIBIT D-2
OMNICOM CAPITAL INC.
Officers' Certificate
I, the undersigned, ________________________________ of Omnicom Capital
Inc., a corporation organized and existing under the laws of Delaware ("OCI"),
DO HEREBY CERTIFY that:
1. This Certificate is furnished pursuant to Section 5.01(c)(iv) of the
364-Day Credit Agreement, dated as of April 25, 2002, among OCI, Omnicom Finance
Inc., Omnicom Finance Plc, the Banks party thereto and Citibank, N.A., as
Administrative Agent (such Credit Agreement, as in effect on the date of this
Certificate, being herein called the "Credit Agreement"). Unless otherwise
defined herein, capitalized terms used in this Certificate have the meanings
assigned to those terms in the Credit Agreement.
2. The persons named below have been duly elected, have duly
qualified as and at all times since _____________(7) (to and including and date
hereof) have been officers of OCI, holding the respective offices below set
opposite their names, and the signatures below set opposite their names are
their genuine signatures.
Name(8) Office Signature
------- ------ ---------
- ------------------- ------------------ ------------------
- ------------------- ------------------ ------------------
- ------------------- ------------------ ------------------
- ------------------- ------------------ ------------------
3. Attached hereto as Exhibit A is a copy of the Certificate of
Incorporation of OCI as filed in the office of the Secretary of State of the
State of Delaware on __________________, 200_, together with all amendments
thereto adopted through the date hereof.
4. Attached hereto as Exhibit B is a true and correct copy of the By-Laws
of OCI as in effect on ____________________,(9) together with all amendments
thereto adopted through the date hereof.
5. Attached hereto as Exhibit C is a true and correct copy of resolutions
duly adopted by the Board of Directors of OCI at a meeting on _________, at
- ----------
(7) Insert a date prior to the time of any corporate action relating to the
Credit Agreement.
(8) Include name, office and signature of each officer who will sign any
Credit Document, including the officer who will sign the certification at
the end of this certificate.
(9) Insert same date as in paragraph 2 of this certificate.
EXHIBIT D-2
Page 2
which a quorum was present and acting throughout, which resolutions have not
been revoked, modified, amended or rescinded and are still in full force and
effect. Except as attached hereto as Exhibit C, no resolutions have been adopted
by the Board of Directors of OCI which deal with the execution, delivery or
performance of any of the Credit Documents.
6. On the date hereof, the representations and warranties of OCI contained
in Section 6 of the Credit Agreement are true and correct, both before and after
giving effect to each Borrowing, if any, to occur on the date hereof and the
application of the proceeds thereof.
7. On the date hereof, no Default or Event of Default has occurred and is
continuing or would result from any Borrowing to occur on the date hereof or
from the application of the proceeds thereof.
8. I know of no proceeding for the dissolution or liquidation of OCI or
threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this _______ day of
[_______], 2002.
OMNICOM CAPITAL INC.
___________________________
Name:
Title:
EXHIBIT D-2
Page 3
I, the undersigned, [Secretary/Assistant Secretary] of OMNICOM CAPITAL INC.
("OCI") DO HEREBY CERTIFY that:
1. [Insert name of Person making the above certifications] is the duly
elected and qualified ___________ of OCI and the signature above is his/her
genuine signature.
2. The certifications made by [Name] in items 2, 3, 4 and 5 above are true
and correct.
3. I know of no proceeding for the dissolution or liquidation of OCI or
threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this ________ day of
[______], 2002.
OMNICOM CAPITAL INC.
___________________________
Name:
Title:
EXHIBIT D-3
OMNICOM FINANCE PLC
Director's Certificate
I, the undersigned, a Director of Omnicom Finance Plc, a company organised and
existing under the laws of England and Wales ("Omnicom Plc") DO HEREBY CERTIFY
that:-
1 This Certificate is furnished pursuant to Section 5.01(c)(iii) of the
364-Day Credit Agreement, dated as of April 25, 2002 between Omnicom
Finance Inc., Omnicom Plc, Omnicom Capital Inc. (collectively, the
"Borrowers"), the financial institutions expressed to be parties thereto
(the "Banks") and Citibank, N.A., as Administrative Agent (the "Credit
Agreement"). Unless otherwise defined herein capitalised terms used in
this Certificate have the meanings assigned to those terms in the Credit
Agreement.
2 The persons named in the attached Appendix A have been duly elected or
appointed as, and at all times on and since [date] (to and including the
date hereof) have been Directors and/or Secretary of Omnicom Plc, holding
the respective offices therein set opposite their names, and the
signatures therein set opposite their names are their genuine signatures.
3 Attached hereto as Appendix B is a true and correct copy of the Memorandum
and Articles of Association of Omnicom Plc as in effect on [date], and at
all times since that date to and including the date hereof without
amendment, including every resolution or agreement required by Section 380
of the Companies Act 1985 to be embodied in or annexed to such Articles.
4 Attached hereto as Appendix C is a true and correct copy of resolutions
duly adopted by the Board of Directors of Omnicom Plc at a meeting on
[date], at which a quorum was present and acting throughout, which
resolutions have not been revoked, modified, amended or rescinded and are
still in full force and effect. Except as attached hereto as Appendix C,
no resolutions have been adopted by the Board of Directors of Omnicom Plc
which deal with the execution, delivery or performance of any of the
Credit Documents.
5 On the date hereof, the representations and warranties of Omnicom Plc
contained in Section 6 of the Credit Agreement are true and correct, both
before and after giving effect to each Borrowing, if any, to occur on the
date hereof and the application of the proceeds thereof.
6 On the date hereof, no Default or Event of Default has occurred and is
continuing or would result from any Borrowing to occur on the date hereof
or from the application of the proceeds thereof.
EXHIBIT D-3
Page 2
7 I know of no petition or resolution for the winding up of Omnicom Plc or
other proceedings threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this [ ] day of [ ] 2002.
OMNICOM FINANCE PLC
___________________________
Name:
Title: Director
I, the undersigned, the Secretary of OMNICOM FINANCE Plc, DO HEREBY CERTIFY
that:-
[name] ("the Director") is a duly elected or appointed Director of Omnicom
Finance Plc and the signature above is his/her genuine signature.
The certifications made by the Director in items 2, 3 and 4 above are true and
correct.
I know of no petition or resolution for the winding up of Omnicom Plc or other
proceedings threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this [ ] day of [ ] 2002.
OMNICOM FINANCE PLC
___________________________
Name: Sally Ann Bray
Title: Secretary
APPENDIX "A"
Named Directors and Secretary
Name Office Signature
Dennis Hewitt Director .................................
Barry Wagner Director .................................
Anthony Phipkin Director .................................
Suzanne Loney Director .................................
Stephen Medhurst Director .................................
Patricia Munday Director .................................
Nicholas Roach Director .................................
Sally Ann Bray Secretary .................................
APPENDIX "B"
Memorandum and Articles
APPENDIX "C"
Directors' Resolutions
EXHIBIT D-4
OMNICOM GROUP INC.
Officers' Certificate
I, the undersigned, ________________________of Omnicom Group Inc., a
corporation organized and existing under the laws of New York (the "Guarantor"),
DO HEREBY CERTIFY that:
1. This Certificate is furnished pursuant to Section 5.01(c)(iii) of the
364-Day Credit Agreement, dated as April 25, 2002, among Omnicom Finance Inc.,
Omnicom Capital Inc. and Omnicom Finance Plc (the "Borrowers"), the Banks party
thereto and Citibank, N.A., as Administrative Agent (such Credit Agreement, as
in effect on the date of this Certificate, being herein called the "Credit
Agreement"). Unless otherwise defined herein, capitalized terms used in this
Certificate have the meanings assigned to those terms in the Credit Agreement.
2. The persons named below have been duly elected, have duly qualified as
and at all time since _________________(10) (to and including and date hereof)
have been officers of the Guarantor, holding the respective offices below set
opposite their names, and the signatures below set opposite their names are
their genuine signatures.
Name(11) Office Signature
-------- ------ ---------
- ------------------- ------------------ ------------------
- ------------------- ------------------ ------------------
- ------------------- ------------------ ------------------
- ------------------- ------------------ ------------------
3. Attached hereto as Exhibit A is a copy of the Certificate of
Incorporation of the Guarantor as filed in the Office of the Secretary of State
of the State of New York on ____________________, 200_, together with all
amendments thereto adopted through the date hereof.
4. Attached hereto as Exhibit B is a true and correct copy of the By-Laws
of the Guarantor as in effect on ________________,(12) together with all
amendments thereto adopted through the date hereof.
- ----------
(10) Insert a date prior to the time of any corporate action relating to the
Guaranty.
(11) Include name, office and signature of each officer who will sign any
Credit Document, including the officer who will sign the certification at
the end of this certificate.
EXHIBIT D-4
Page 2
5. Attached hereto as Exhibit C is a true and correct copy of resolutions
duly adopted by the Board of Directors of the Guarantor at a meeting on
______________________ at which a quorum was present and acting throughout,
which resolutions have not been revoked, modified, amended or rescinded and are
still in full force and effect. Except as attached hereto as Exhibit C, no
resolutions have been adopted by the Board of Directors of the Guarantor which
deal with the execution, delivery or performance of any of the Credit Documents.
6. On the date hereof, the representations and warranties contained in
Section 6 of the Guaranty are true and correct, both before and after giving
effect to each Borrowing, if any, to occur on the date hereof and the
application of the proceeds thereof.
7. On the date hereof, no Default or Event of Default has occurred and is
continuing or would result from any Borrowing to occur on the date hereof or
from the application of the proceeds thereof.
8. I know of no proceeding for the dissolution or liquidation of the
Guarantor or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this _____ day of
[____________], 2002.
OMNICOM GROUP INC.
___________________________
Name:
Title:
- ----------
.....continued from the preceding page
(12) Insert same date as in paragraph 2 of this certificate.
EXHIBIT D-4
Page 3
I, the undersigned, [Secretary/Assistant Secretary) of OMNICOM GROUP INC. ("the
Guarantor"), DO HEREBY CERTIFY that:
1. [Insert name of Person making the above certifications] is the duly
elected and qualified __________ of the Guarantor and the signature above is
his/her genuine signature.
2. The certifications made by [Name] in items 2, 3, 4 and 5 above are true
and correct.
3. I know of no proceeding for the dissolution or liquidation of the
Guarantor or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this _____ day of
[____________], 2002.
OMNICOM GROUP INC.
By_________________________
Name:
Title:
EXHIBIT E
- --------------------------------------------------------------------------------
OMNICOM GROUP INC.,
as Guarantor
GUARANTY
Dated as of April 25, 2002
- --------------------------------------------------------------------------------
TABLE OF CONTENTS(1)
Paragraph Page
- --------- ----
1. The Guaranty.........................................................1
2. Waiver of Notice, Etc................................................1
3. Waiver of Suretyship Defenses........................................2
4. Obligations Unconditional............................................2
5. Subrogation..........................................................3
6. Representations and Warranties.......................................3
(a) Corporate Existence.........................................3
(b) Action......................................................4
(c) No Breach...................................................4
(d) Approvals...................................................4
(e) Financial Condition.........................................4
(f) Financial Disclosure........................................4
(g) Litigation..................................................5
(h) True and Complete Disclosure................................5
(i) Taxes.......................................................5
(j) Capitalization..............................................5
(k) Environmental Matters.......................................6
(l) Material Subsidiaries.......................................6
(m) Investment Company Act......................................6
(n) Public Utility Holding Company Act..........................6
(o) Ownership of Borrowers......................................6
(p) Ownership of Intellectual Property..........................6
(q) Margin Stock................................................7
7. Covenants............................................................7
(a) Financial Statements, Etc...................................7
(b) Bookkeeping.................................................8
- ----------
(1) This Table of Contents is provided for convenience only and is not a part
of the attached Guaranty.
-i-
(c) Maintenance of Property; Insurance..........................9
(d) Existence, Etc..............................................9
(e) Compliance with Applicable Laws.............................9
(f) ERISA.......................................................9
(g) Fiscal Year, Etc...........................................10
(h) Lines of Business..........................................10
(i) Liens......................................................10
(j) Prohibition on Fundamental Changes.........................11
(k) Leases.....................................................12
(l) Indebtedness...............................................12
(m) Investments................................................13
(n) Transactions with Affiliates...............................14
(o) Total Consolidated Indebtedness to Total Consolidated
Capitalization Ratio......................................14
(p) Debt to Cash Flow Ratio....................................14
(q) Certain Obligations Respecting Subsidiaries................14
8. Definitions.........................................................14
9. Continuing Guaranty, Etc............................................18
10. Successors and Assigns..............................................19
11. Amendments, Etc.....................................................19
12. Receipt of Credit Agreement.........................................19
13. Setoff..............................................................19
14. Notices.............................................................19
15. Reinstatement.......................................................19
16. Statute of Limitations..............................................19
17. Generally Accepted Accounting Principles............................20
18. Governing Law, Submission to Jurisdiction ..........................20
19. Judgment Currency...................................................20
-ii-
Schedule I -- Material Subsidiaries of the Guarantor
Schedule II -- Existing Indebtedness of Subsidiaries
Schedule III -- Types of Indebtedness
-iii-
GUARANTY, dated as of April 25, 2002, made by OMNICOM GROUP INC., a
corporation organized and existing under the laws of New York (the "Guarantor").
Except as otherwise defined herein, terms used herein and defined in the Credit
Agreement (as hereinafter defined), if not otherwise defined herein, shall be
used herein as so defined.
W I T N E S S E T H :
WHEREAS, Omnicom Finance Inc., Omnicom Capital Inc. and Omnicom Finance
Plc (the "Borrowers"), various financial institutions (the "Banks") and
Citibank, N.A., as Administrative Agent (the "Administrative Agent") (the Banks
and the Administrative Agent being hereinafter collectively referred to as the
"Guaranteed Parties") have entered into a 364-Day Credit Agreement, dated as of
April 25, 2002 (as modified, supplemented or amended from time to time, the
"Credit Agreement"), providing for the making of Loans in Dollars as
contemplated therein;
WHEREAS, it is a condition precedent to the effectiveness of the Credit
Agreement referred to above that the Guaranty be executed and delivered in the
form hereof;
WHEREAS, it is a condition to the making of Loans under the Credit
Agreement that the Guarantor shall have executed and delivered this Guaranty;
and
WHEREAS, the Guarantor will obtain benefits as a result of the Loans made
to the Borrowers under the Credit Agreement and, accordingly, desires to execute
and deliver this Guaranty in order to satisfy the conditions described in the
two immediately preceding paragraphs;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to the Guarantor, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby makes the following representations and
warranties to the Guaranteed Parties and hereby covenants and agrees with the
Guaranteed Parties as follows:
1. The Guaranty. The Guarantor irrevocably and unconditionally guarantees
the full and prompt payment when due (whether by acceleration or otherwise) of
the principal of and interest on any Note issued under the Credit Agreement and
of all other obligations and liabilities (including, without limitation,
indemnities, fees and interest thereon) of the Borrowers now existing or
hereafter incurred under, arising out of or in connection with the Credit
Agreement and the due performance and compliance with the terms of the Credit
Agreement and the Notes by the Borrowers (all such principal, interest,
obligations and liabilities, collectively, the "Guaranteed Obligations"). All
payments by the Guarantor under this Guaranty, to the extent owing to the Banks
or the Administrative Agent, shall be made on the same basis as payments by the
Borrowers under Sections 4.02 and 4.03 of the Credit Agreement.
2. Waiver of Notice, Etc. The Guarantor hereby waives notice of acceptance
of this Guaranty and notice of any liability to which it may apply, and waives
presentment, demand of payment, protest, notice of dishonor or nonpayment of any
such liability, suit or
taking of other action by any Guaranteed Party against, and any other notice to,
any party liable thereon (including the Guarantor or any other guarantor).
3. Waiver of Suretyship Defenses. Any Guaranteed Party may at any time and
from time to time without the consent of, or notice to the Guarantor, without
incurring responsibility to the Guarantor, without impairing or releasing the
obligations of the Guarantor hereunder, upon or without any terms or conditions
and in whole or in part:
(a) change the manner, place or terms of payment of, and/or change
or extend the time of payment of, renew or alter, any of the Guaranteed
Obligations, any security therefore, or any liability incurred directly or
indirectly in respect thereof, and the guaranty herein made shall apply to
the Guaranteed Obligations as so changed, extended, renewed or altered;
(b) sell, exchange, release, surrender, realize upon or otherwise
deal with in any manner and in any order any property by whomsoever at any
time pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset
there against;
(c) exercise or refrain from exercising any rights against the
Borrowers or others or otherwise act or refrain from acting;
(d) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrowers to creditors of the
Borrowers other than the Guaranteed Parties and the Guarantor;
(e) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrowers to the Guaranteed Parties
regardless of what liability or liabilities of the Borrowers remain
unpaid;
(f) consent to or waive any breach of, or any act, omission or
default under, any of the Credit Documents, or otherwise amend, modify or
supplement any of the Credit Documents or any of such other instruments or
agreements; and/or
(g) act or fail to act in any manner referred to in this Guaranty
which may deprive the Guarantor of its right to subrogation against the
Borrowers to recover full indemnity for any payments made pursuant to this
Guaranty.
4. Obligations Unconditional. The obligations of the Guarantor under this
Guaranty are absolute and unconditional and shall remain in full force and
effect without regard to, and shall not be released, suspended, discharged,
terminated or otherwise affected by, any circumstance or occurrence whatsoever,
including, without limitation: (a) any action or inaction
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by any Guaranteed Party as contemplated in Section 3 of this Guaranty; (b) any
invalidity, irregularity or unenforceability of all or part of the Guaranteed
Obligations or of any security therefor; or (c) to the fullest extent permitted
by law, any other circumstance or occurrence that would or might otherwise
release, suspend, discharge, terminate or otherwise affect the obligations of a
surety. This Guaranty is a primary obligation of the Guarantor, and is a
guaranty of payment, not merely collection.
5. Subrogation. (a) The Guarantor hereby waives all rights of subrogation
which it may at any time otherwise have as a result of this Guaranty (whether
contractual, under Section 509 of the Bankruptcy Code, or otherwise) to the
claims of the Guaranteed Parties against the Borrowers or any other guarantor of
the Guaranteed Obligations (collectively, the "Other Parties") and all
contractual, statutory or common law rights of reimbursement, contribution or
indemnity from any Other Party which it may at any time otherwise have as a
result of this Guaranty. The Guarantor hereby further waives any right to
enforce any other remedy which the Guaranteed Parties now have or may hereafter
have against any Other Party, any endorser or any other guarantor of all or any
part of the indebtedness of the Borrowers and any benefit of, and any right to
participate in, any security or collateral given to or for the benefit of the
Guaranteed Parties to secure payment of the indebtedness of the Borrowers. The
Guarantor also waives all claims (as such term is defined in the Bankruptcy
Code) it may at any time otherwise have against any Other Party arising from any
transaction whatsoever, including, without limitation, its right to assert or
enforce any such claims.
(b) Notwithstanding the provisions of the preceding clause (a), the
Guarantor shall have and be entitled to (i) all rights of subrogation otherwise
provided by law in respect of any payment it may make or be obligated to make
under this Guaranty and (ii) all claims (as defined in the Bankruptcy Code) it
would have against any Other Party in the absence of the preceding clause (a),
and to assert and enforce same, provided that no Default or Event of Default of
the type described in Section 9.05 of the Credit Agreement with respect to the
respective Other Party exists at the time of such assertion and enforcement.
6. Representations and Warranties. In order to induce the Banks to make
the Loans, the Guarantor makes the following representations, warranties and
agreements:
(a) Corporate Existence. Each of the Guarantor and its Subsidiaries
(i) is a duly organized and validly existing corporation in good standing
under the laws of the jurisdiction of its incorporation, (ii) has the
power and authority to own its property and assets and to transact the
business in which it is engaged and (iii) is duly qualified as a foreign
corporation and in good standing in each jurisdiction where the ownership,
leasing or operation of property or the conduct of its business requires
such qualification, except where the failure to be so qualified could not
have a material adverse effect on the business, operations, property,
assets, condition (financial or otherwise) or (to the knowledge of the
Guarantor) prospects of the Guarantor or of the Guarantor and its
Subsidiaries taken as a whole.
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(b) Action. The Guarantor has the corporate power to execute,
deliver and perform the terms and provisions of this Guaranty and has
taken all necessary corporate action to authorize the execution, delivery
and performance by it of this Guaranty. The Guarantor has duly executed
and delivered this Guaranty, and this Guaranty constitutes its legal,
valid and binding obligation enforceable in accordance with its terms
except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting
creditors' rights generally and by general equitable principles
(regardless of whether the issue of enforceability is considered in a
proceeding in equity or at law).
(c) No Breach. Neither the execution, delivery or performance by the
Guarantor of this Guaranty, nor compliance by it with the terms and
provisions hereof, (i) will contravene any provision of any law, statute,
rule or regulation or any order, writ, injunction or decree of any court
or governmental instrumentality, (ii) will conflict or be inconsistent
with or result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, credit agreement, loan agreement or any other agreement,
contract or instrument to which the Guarantor or any of its Subsidiaries
is a party or by which it or any of its property or assets is bound or to
which it may be subject or (iii) will violate any provision of the
Certificate of Incorporation or Bylaws of the Guarantor or any of its
Subsidiaries.
(d) Approvals. No order, consent, approval, license, authorization
or validation of, or filing, recording or registration with (except as
have been obtained or made prior to the date hereof), or exemption by, any
governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with, (i) the
execution, delivery and performance of this Guaranty or (ii) the legality,
validity, binding effect or enforceability of this Guaranty.
(e) Financial Condition. The consolidated statements of financial
condition of the Guarantor and its Subsidiaries at December 31, 2001 and
the related consolidated statements of income and retained earnings and
cash flow of the Guarantor and its Subsidiaries for the fiscal year ended
on such date and heretofore furnished to the Banks present fairly, in all
material respects, the consolidated financial condition of the Guarantor
and its Subsidiaries at the date of such statements of financial condition
and the consolidated results of the operations of the Guarantor and its
Subsidiaries for such fiscal year. All such financial statements have been
prepared in accordance with generally accepted accounting principles and
practices consistently applied. From December 31, 2001 through the date of
this Guaranty, there has been no material adverse change in the business,
operations, property, assets, condition (financial or otherwise) or (to
the knowledge of the Guarantor) prospects of the Guarantor or of the
Guarantor and its Subsidiaries taken as a whole.
(f) Financial Disclosure. Except as fully reflected in the financial
statements delivered pursuant to the preceding clause (e), there were as
of the date hereof no
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liabilities or obligations with respect to the Guarantor or any of its
Subsidiaries of any nature whatsoever (whether absolute, accrued,
contingent or otherwise and whether or not due) which, either individually
or in aggregate, would be materially adverse to the Guarantor or to the
Guarantor and its Subsidiaries taken as a whole.
(g) Litigation. There are no actions, suits or proceedings pending
or, to the best knowledge of the Guarantor, threatened (i) with respect to
any Credit Document or (ii) that are reasonably likely to materially and
adversely affect the business, operations, property, assets, condition
(financial or otherwise) or (to the knowledge of the Guarantor) prospects
of the Guarantor or of the Guarantor and its Subsidiaries taken as a
whole.
(h) True and Complete Disclosure. All factual information (taken as
a whole) heretofore or contemporaneously furnished by or on behalf of the
Guarantor in writing to any Bank (including, without limitation, all
information contained herein) for purposes of or in connection with this
Guaranty or any transaction contemplated herein is, and all other such
factual information (taken as a whole) hereafter furnished by or on behalf
of the Guarantor in writing to any Bank will be, true and accurate in all
material respects on the date as of which such information is dated or
certified and does 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.
(i) Taxes. Each of the Guarantor and its Subsidiaries has filed all
tax returns required to be filed (taking into account all valid
extensions) by it and has paid all income taxes payable by it which have
become due pursuant to such tax returns and all other taxes and
assessments payable by it which have become due, other than those not yet
delinquent and except for those contested in good faith and for which
adequate reserves have been established. Each of the Guarantor and its
Subsidiaries has paid, or has provided adequate reserves (in the good
faith judgment of the management of the Guarantor) for the payment of, all
federal and state income taxes applicable for all prior fiscal years and
for the current fiscal year to the last day of the fiscal quarter
immediately preceding the date hereof.
(j) Capitalization. As of December 31, 2001, the authorized capital
stock of the Guarantor consisted of (i) 1,000,000,000 shares of common
stock, $.15 par value per share, of which 198,669,254 shares were issued
and outstanding and (ii) 7,500,000 shares of preferred stock, $1.00 par
value per share, none of which shares were issued and outstanding. All
such outstanding shares have been duly and validly issued, are fully paid
and non-assessable. Other than (x) certain options to purchase 17,743,823
shares of common stock of the Guarantor (as of December 31, 2001) and
performance units payable in cash and/or common stock in the discretion of
the Compensation Committee of the Board of Directors of the Guarantor, (y)
the Guarantor's Zero-Coupon Convertible Notes due 2031 and Zero-Coupon
Convertible Notes due 2032, and (z) shares of common stock issuable under
certain acquisition agreements to which the Guarantor is a party, the
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Guarantor does not have outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any rights to subscribe
for or to purchase, or any options for the purchase of, or any agreements
providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to, its capital stock.
(k) Environmental Matters. Each of the Guarantor and its
Subsidiaries is in compliance with all applicable statutes, regulations
and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards
and controls), except such noncompliances as would not, in the aggregate,
have a material adverse effect on the business, operations, property,
assets, condition (financial or otherwise) or (to the knowledge of the
Guarantor) prospects of the Guarantor or of the Guarantor and its
Subsidiaries taken as a whole.
(l) Material Subsidiaries Schedule I correctly sets forth the name
of each Material Subsidiary of the Guarantor, the percentage ownership
(direct and indirect) of the Guarantor in the voting securities of each
such Material Subsidiary and also identifies the direct owner thereof, in
each case as of the date hereof.
(m) Investment Company Act. None of the Guarantor or any of its
Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(n) Public Utility Holding Company Act. None of the Guarantor, OFI
or OCI is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or a "subsidiary
company" of a "holding company" within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
(o) Ownership of Borrowers. The Guarantor owns all of the capital
stock of each of OFI and OCI and Diversified Agency Services Limited
("DASL"), and DASL owns all of the capital stock of OFP.
(p) Ownership of Intellectual Property. Each of the Guarantor and
its Subsidiaries owns all the patents, trademarks, permits, service marks,
trade names, copyrights, licenses, franchises and formulas, or rights with
respect to the foregoing, and has obtained assignments of all leases and
other rights of whatever nature, necessary for the present conduct of its
business, without any known conflict with the rights of others which, or
the failure to obtain which, as the case may be, would result in a
material adverse effect on the business, operations, property, assets,
condition (financial or otherwise) or (to the knowledge of the Guarantor)
prospects of the Guarantor or of the Guarantor and its Subsidiaries taken
as a whole.
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(q) Margin Stock. All proceeds of each Loan shall be used by each
Borrower for general corporate purposes, including the repayment of
maturing Commercial Paper of such Borrower and acquisitions; provided that
no part of the proceeds of any Loan will be used by the Borrowers to
purchase or carry any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock in violation of
Regulation T, U or X of the Board of Governors of the Federal Reserve
Board. Not more than 25% of the value of the assets of the Guarantor or
the Guarantor and its Subsidiaries subject to the restrictions contained
in Section 7 of this Guaranty constitute Margin Stock and, at the time of
each Borrowing, not more than 25% of the value of the assets of the
Guarantor or the Guarantor and its Subsidiaries subject to the
restrictions contained in Section 7 of this Guaranty will constitute
Margin Stock. Notwithstanding the foregoing provisions of this Section
6(q) neither the Guarantor nor any of its Subsidiaries (including, without
limitation, the Borrowers) will use the proceeds of any Loan to purchase
the capital stock of any corporation in a transaction, or as part of a
series of transactions, (i) the purpose of which is, at the time of any
such purchase, to acquire control of such corporation or (ii) the result
of which is the ownership by the Guarantor and its Subsidiaries
(including, without limitation, the Borrowers) of 10% or more of the
capital stock of such corporation, in either case if the Board of
Directors of such corporation has publicly announced its opposition to
such transaction.
7. Covenants. The Guarantor hereby covenants and agrees that on and after
the date hereof and until the termination of the Total Commitment and the
repayment in full of the Loans and Notes, together with interest, fees and all
other Obligations incurred under the Credit Agreement:
(a) Financial Statements, Etc. The Guarantor will furnish to each
Bank:
(i) within 50 days after the close of each quarterly
accounting period in each fiscal year of the Guarantor (other than
the fourth fiscal quarterly accounting period), the consolidated
statements of financial condition of the Guarantor and its
Subsidiaries as at the end of such quarterly period and the related
consolidated statements of income for such quarterly period and of
cash flow for the elapsed portion of the fiscal year ended with the
last day of such quarterly period, in each case setting forth
comparative figures for the related periods in the prior fiscal year
(or for the last day of the respective fiscal quarter in the prior
fiscal year in the case of the balance sheet), all of which shall be
certified by the chief financial officer of the Guarantor, subject
to normal year-end adjustments;
(ii) within 105 days after the close of each fiscal year of
the Guarantor, the audited consolidated statements of financial
condition of the Guarantor and its Subsidiaries as at the end of
such fiscal year and the related consolidated statements of income
and retained earnings and statements of cash flow for such fiscal
year, in each case setting forth comparative figures for the
preceding fiscal
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year and reported on by independent certified public accountants of
recognized national standing reasonably acceptable to the Required
Banks;
(iii) at the time of the delivery of the financial statements
provided for in clauses (i) and (ii), a certificate of the chief
financial officer of the Guarantor to the effect that, to the best
of his knowledge, no Default or Event of Default has occurred and is
continuing or, if any Default or Event of Default has occurred and
is continuing, specifying the nature and extent thereof, which
certificate shall set forth the calculations required to establish
whether the Guarantor was in compliance with the provisions of
clauses (o) and (p) of this Section 7, inclusive, at the end of such
fiscal quarter or year, as the case may be;
(iv) promptly, and in any event within three Business Days
after an officer of the Guarantor obtains knowledge thereof, notice
of (x) the occurrence of any event which constitutes a Default or
Event of Default, (y) any litigation or governmental proceeding
pending (a) against the Guarantor or any of its Subsidiaries which
could materially and adversely affect the business, operations,
property, assets, condition (financial or otherwise) or (to the
knowledge of the Guarantor) prospects of the Guarantor or the
Guarantor and its Subsidiaries taken as a whole or (b) with respect
to any Credit Document and (z) any other event which is likely to
materially and adversely affect the business, operations, property,
assets, condition (financial or otherwise) or (to the knowledge of
the Guarantor) prospects of the Guarantor or the Guarantor and its
Subsidiaries taken as a whole;
(v) promptly, copies of all financial information, proxy
materials and other information and reports, if any, which the
Guarantor shall file with the SEC; and
(vi) from time to time, such other information or documents
(financial or otherwise) as any Bank may reasonably request, other
than consolidating financial statements of Subsidiaries and
Affiliates.
(b) Bookkeeping. The Guarantor will, and will cause each of its
Subsidiaries to, keep proper books of record and account in which full,
true and correct entries in conformity with generally accepted accounting
principles and all requirements of law shall be made of all dealings and
transactions in relation to its business and activities. The Guarantor
will, and will cause each of its Subsidiaries to, permit officers and
designated representatives of the Administrative Agent or any Bank to
visit and inspect, under guidance of officers of the Guarantor or such
Subsidiary, any of the properties of the Guarantor or such Subsidiary, and
to examine the books of record and account of the Guarantor or such
Subsidiary (including, without limitation, consolidating financial
statements of Subsidiaries and Affiliates) and discuss the affairs,
finances and accounts of the Guarantor or such Subsidiary with, and be
advised as to the same by, its and their
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officers, all at such reasonable times and intervals and to such
reasonable extent as the Administrative Agent or such Bank may request.
(c) Maintenance of Property; Insurance. The Guarantor will, and will
cause each of its Subsidiaries to, (i) keep all property useful and
necessary in its business in good working order and condition (ordinary
wear and tear excepted), (ii) maintain with financially sound and
reputable insurance companies insurance on its property in at least such
amounts and against at least such risks as are usually insured against in
the same general area by companies engaged in the same or a similar
business, and (iii) furnish to each Bank, upon written request, full
information as to the insurance carried.
(d) Existence, Etc. The Guarantor will, and will cause each of its
Subsidiaries to, do or cause to be done, all things necessary to preserve
and keep in full force and effect its existence and its material rights,
franchises, licenses and patents; provided, however, that nothing in this
clause (d) shall prevent (i) the withdrawal by the Guarantor or any of its
Subsidiaries of its qualification as a foreign corporation in any
jurisdiction where such withdrawal could not have a material adverse
effect on the business, operations, property, assets, condition (financial
or otherwise) or (to the knowledge of the Guarantor) prospects of the
Guarantor or the Guarantor and its Subsidiaries taken as a whole or (ii)
any transaction permitted by Section 7(j) of this Guaranty. The Guarantor
will, and will cause each of its Subsidiaries to, pay all taxes and
assessments payable by it which have become due, other than those not yet
delinquent and except for those contested in good faith and for which
adequate reserves have been established.
(e) Compliance with Applicable Laws. The Guarantor will, and will
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards
and controls), except such noncompliances as could not, in the aggregate,
have a material adverse effect on the business, operations, property,
assets, condition (financial or otherwise) or (to the knowledge of the
Guarantor) prospects of the Guarantor or of the Guarantor and its
Subsidiaries taken as a whole.
(f) ERISA. As soon as possible and, in any event, within 10 days
after the Guarantor or any of its Subsidiaries or ERISA Affiliates knows
or has reason to know any of the following, the Guarantor will deliver to
each of the Banks a certificate of the chief financial officer of the
Guarantor setting forth details as to such occurrence and such action, if
any, which the Guarantor, such Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or
proposed to be given to or filed with or by the Guarantor, the Subsidiary,
the ERISA Affiliate, the PBGC, a Plan participant or the Plan
Administrator with respect thereto, that a Reportable Event has occurred,
that an accumulated funding deficiency has been incurred or an application
may be or has been made to the Secretary of the Treasury for a waiver or
modification of
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the minimum funding standard (including any required installment payments)
or an extension of any amortization period under Section 412 of the Code
with respect to a Plan, that a Plan has been or may be terminated via a
"distress termination" as referred to in Section 4041(c) of ERISA,
reorganized, partitioned or declared insolvent under Title IV of ERISA,
that a Plan has an Unfunded Current Liability giving rise to a Lien under
ERISA, that proceedings may be or have been instituted by the PBGC to
terminate a Plan, that a proceeding has been instituted pursuant to
Section 515 of ERISA to collect a delinquent contribution to a Plan, or
that the Guarantor, any of its Subsidiaries or ERISA Affiliates will or
may incur any liability (including any contingent or secondary liability)
to or on account of the termination of or withdrawal from a Plan under
Section 4062, 4063, 4064, 4201 or 4204 of ERISA. In addition to any
certificates or notices delivered to the Banks pursuant to the first
sentence hereof, copies of notices received by the Guarantor or any of its
Subsidiaries required to be delivered to the Banks hereunder shall be
delivered to the Banks no later than 10 days after the later of the date
such notice has been filed with the Internal Revenue Service or the PBGC,
given to Plan participants or received by the Guarantor or such
Subsidiary.
(g) Fiscal Year, Etc. The Guarantor shall cause (i) each of its, and
each of its Designated Subsidiary's, fiscal years to end on December 31
and (ii) each of its, and each of its Designated Subsidiary's, fiscal
quarters to end on March 31, June 30, September 30 and December 31.
(h) Lines of Business. The Guarantor will not, and will not permit
any of its Subsidiaries to, engage (directly or indirectly) in any
business other than the lines of business in which it is engaged on the
date hereof and any other reasonably related businesses or businesses
reasonably incidental thereto.
(i) Liens. The Guarantor will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or
with respect to any property or assets (real or personal, tangible or
intangible) of the Guarantor or any of its Subsidiaries, whether now owned
or hereafter acquired, provided that the provisions of this clause (i)
shall not prevent the creation, incurrence, assumption or existence of:
(i) Liens for taxes not yet due, or Liens for taxes being
contested in good faith and by appropriate proceedings for which
adequate reserves have been established;
(ii) Liens in respect of property or assets of the Guarantor
or any of its Subsidiaries imposed by law, which were incurred in
the ordinary course of business, such as carriers', warehousemen's
and mechanics' liens and other similar Liens arising in the ordinary
course of business and (x) which do not in the aggregate materially
detract from the value of such property or assets or materially
impair the use thereof in the operation of the business of the
Guarantor or any of its Subsidiaries or (y) which are being
contested in good faith by
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appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or assets subject
to any such Lien;
(iii) Liens created for the benefit of the Administrative
Agent and the Banks;
(iv) pledges or deposits in connection with worker's
compensation, unemployment insurance and other social security
legislation;
(v) easements, rights-of-way and other similar Liens on, over
or in respect of any property of the Guarantor or any of its
Subsidiaries which do not individually or in the aggregate
materially impair the use or value of the property or assets subject
thereto;
(vi) purchase money mortgages or other Liens on property
acquired after the date hereof by the Guarantor or any of its
Subsidiaries to secure the purchase price of such property (or to
secure indebtedness incurred solely for the purpose of financing the
acquisition of such property), or Liens on any such property at the
time of the acquisition of such property by the Guarantor or any of
its Subsidiaries, whether or not assumed, provided that (x) the
Indebtedness secured by each such Lien shall not exceed the cost of
such property to the Guarantor or such Subsidiary or the fair value
thereof at the time of the acquisition thereof, as the case may be,
whichever is less, (y) each such Lien shall apply and attach only to
the property originally subject thereto and fixed improvements
thereon or accessions thereto, and (z) the principal amount of
Indebtedness at any time outstanding and secured by Liens permitted
by this clause (vi) of this Section 7(i) shall not in the aggregate
for the Guarantor and its Subsidiaries exceed, when aggregated
together with the Indebtedness secured by Liens permitted by clause
(vii) below, 1.75% of Consolidated Adjusted Net Worth at such time;
(vii) Liens securing Indebtedness permitted by Section
7(l)(viii) of this Guaranty;
(viii) Liens on assets sold by the Guarantor or any of its
Subsidiaries and leased back by the Guarantor or such Subsidiary, so
long as the aggregate fair value of assets so sold after the date
hereof pursuant to this clause (viii) shall not exceed 3.5% of
Consolidated Adjusted Net Worth at such time; and
(ix) Liens securing Indebtedness permitted by Section
7(l)(vii) of this Guaranty, provided that the aggregate principal
amount of such secured Indebtedness shall not exceed 15% of
Consolidated Net Worth at any time.
(j) Prohibition on Fundamental Changes. The Guarantor will not, and
will not permit any of its Subsidiaries to, wind up, liquidate or dissolve
its affairs or enter into
-11-
any transaction of merger or consolidation, or convey, sell, lease or
otherwise dispose of (or agree to do any of the foregoing at any future
time) all or any substantial part of its property or assets, except that:
(i) any Subsidiary of the Guarantor (other than the Borrowers) may do any
of the foregoing in any fiscal year (the "Current Year") of the Guarantor
so long as (x) the revenues of such Subsidiary for the then most recently
ended fiscal year (the "Prior Year"), when added to the revenues for the
Prior Year of all other Subsidiaries that have entered into transactions
permitted by this clause (i) during the Current Year, do not exceed 15% of
the revenues of the Guarantor and its Subsidiaries for the Prior Year and
(y) the aggregate of (A) the revenues of such Subsidiary for the Prior
Year, plus (B) with respect to each Subsidiary which consummated a
transaction pursuant to clause (x) in the Current Year or the four
immediately preceding fiscal years, the revenues of such Subsidiary for
the year prior to the year in which the transaction was consummated, does
not exceed 40% of the revenues of the Guarantor and its Subsidiaries for
the Prior Year (for purposes hereof the year ending December 31, 2001
shall be the first such preceding fiscal year, and the actual number of
such preceding fiscal years shall be used until such time as there are
four preceding fiscal years), (ii) Subsidiaries of the Guarantor (other
than the Borrowers) may convey, sell, lease or otherwise dispose of all or
any part of its property or assets to the Guarantor or to other
Subsidiaries (including, without limitation, by way of winding-up,
liquidation or dissolution), (iii) any Wholly-Owned Subsidiary of the
Guarantor (other than the Borrowers) may merge into the Guarantor or
another Wholly-Owned Subsidiary, (iv) the Guarantor or any Wholly-Owned
Subsidiary may enter into a merger transaction if (w) it is the surviving
entity, (x) no Default or Event of Default would exist immediately after
giving effect thereto, and (y) in the case of a Wholly-Owned Subsidiary,
such Subsidiary remains a Wholly-Owned Subsidiary after the merger
transaction is consummated, and (v) the Guarantor may transfer, sell or
convey the stock of one or more of its Subsidiaries (other than the
Borrowers) to one or more of its other Subsidiaries so long as, in the
case of any such transfer, sale or conveyance of the stock of any
Designated Subsidiary, the indirect ownership interest of the Guarantor in
such Designated Subsidiary is not reduced as a result thereof.
(k) Leases. The Guarantor will not enter into or permit any
Subsidiary to enter into any agreements to rent or lease any real or
personal property (excluding capitalized leases) except in the ordinary
course of business.
(l) Indebtedness. The Guarantor will not permit any of its
Subsidiaries to contract, create, incur, assume or suffer to exist any
Indebtedness, except (i) Indebtedness listed on Schedule II ("Existing
Indebtedness"), (ii) accrued expenses and current trade accounts payable
incurred in the ordinary course of business, and obligations under trade
letters of credit incurred by such Subsidiaries in the ordinary course of
business, which are to be repaid in full not more than one year after the
date on which such Indebtedness is originally incurred to finance the
purchase of goods by such Subsidiary, (iii) obligations under letters of
credit incurred by such Subsidiaries in the ordinary course of business in
support of obligations incurred in connection with worker's compensation,
-12-
unemployment insurance and other social security legislation, (iv)
Indebtedness of Subsidiaries of the Guarantor to the extent permitted
under clause (m)(iv)-(vii) below, (v) Indebtedness of the Borrowers or any
other Subsidiary of the Guarantor arising under, or constituting
guaranties of, the Credit Agreement, (vi) other Indebtedness of the
Borrowers so long as no Default or Event of Default then exists or would
result there from, (vii) other Indebtedness of Foreign Subsidiaries of the
Guarantor and (viii) Indebtedness of any Subsidiary of the Guarantor,
provided that such Indebtedness was outstanding at such Subsidiary prior
to the acquisition by the Guarantor of such Subsidiary and was not
incurred in connection with or in contemplation of such acquisition.
(m) Investments. The Guarantor will not, and will not permit any of
its Subsidiaries to, lend money or credit or make advances to any Person,
or purchase or acquire any stock, obligations or securities of, or any
other interest in, or make any capital contribution to, any other Person,
except that the following shall be permitted:
(i) the Guarantor and its Subsidiaries may acquire and hold
receivables owing to it, if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with
customary trade terms;
(ii) the Guarantor and its Subsidiaries may acquire and hold
Cash Equivalents, and Foreign Subsidiaries of the Guarantor may
acquire and hold Foreign Cash Equivalents;
(iii) the Guarantor and its Subsidiaries may make loans and
advances to officers, employees and agents in the ordinary course of
business;
(iv) the Guarantor may make loans, advances or capital
contributions to Subsidiaries;
(v) Subsidiaries of the Guarantor may make loans, advances or
capital contributions to the Guarantor or other Subsidiaries;
(vi) the Guarantor and its Subsidiaries may have Investments
in Affiliates at any one time outstanding up to but not exceeding an
amount equal to one-third (1/3rd) of Consolidated Adjusted Net Worth
at such time;
(vii) the Guarantor and its Subsidiaries may purchase or
acquire stock or securities, or acquire assets or assume
liabilities, of another Person in arm's-length transactions so long
as no Default or Event of Default exists or would result there from,
and, in the case of a purchase or acquisition of stock or
securities, such Person becomes a Subsidiary of the Guarantor;
-13-
(viii) the Guarantor and its Subsidiaries may invest in
preferred auction rate stock and other similar tax favored short
term investments with a readily available and liquid secondary
market; and
(ix) the Guarantor and its Subsidiaries may make loans,
purchase securities or make other investments not permitted by the
foregoing clauses of this Section 7(m) so long as the aggregate
outstanding amount thereof, net of cash repayments of principal in
the case of loans and cash sales proceeds in the case of securities
or other investments that are liquidated but excluding any write-ups
or write-downs in the value of any such loan, security or other
investment that has not been liquidated, shall not exceed 15% of
Consolidated Adjusted Net Worth at any time.
(n) Transactions with Affiliates. The Guarantor will not, and will
not permit any of its Subsidiaries to, enter into any transaction or
series of related transactions, whether or not in the ordinary course of
business, with any Affiliate of the Guarantor, other than on terms and
conditions substantially as favorable to the Guarantor or such Subsidiary
as would be obtainable by the Guarantor or such Subsidiary at the time in
a comparable arm's-length transaction with a Person other than an
Affiliate.
(o) Total Consolidated Indebtedness to Total Consolidated
Capitalization Ratio. The Guarantor will not permit the ratio of its Total
Consolidated Indebtedness to Total Consolidated Capitalization to be more
than (i) 0.65:1 at any time from and including January 1 to and including
September 30 of each year and (ii) 0.55:1 at any time from and including
October 1 to and including December 31, of each year.
(p) Debt to Cash Flow Ratio. The Guarantor will not permit the Debt
to Cash Flow Ratio for the period of four consecutive fiscal quarters
(taken as one accounting period) ending on the last day of such fiscal
quarter to be more than 5:1.
(q) Certain Obligations Respecting Subsidiaries. The Guarantor will
not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any such
Subsidiary to (a) 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 Subsidiary of the Guarantor, or pay any
Indebtedness owed to the Guarantor or a Subsidiary of the Guarantor, (b)
make loans or advances to the Guarantor or (c) transfer any of its
properties or assets to the Guarantor, except for (x) such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) this
Guaranty or any other Credit Document and (iii) customary provisions
restricting subletting or assignment of any lease governing a leasehold
interest of the Guarantor or a Subsidiary of the Guarantor and (y)
issuances by Subsidiaries of preferred stock.
8. Definitions. Terms defined in the Credit Agreement and used, but not
otherwise defined, in this Guaranty shall have the respective meanings assigned
to such terms in
-14-
the Credit Agreement. In addition, 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):
"Affiliate" shall mean, with respect to any Person, any other Person
(other than an individual) directly or indirectly controlling, controlled by, or
under direct or indirect common control with, such Person; provided, however,
that for purposes of Section 7(n) of this Guaranty, an Affiliate of the
Guarantor shall include any Person that directly or indirectly owns more than 5%
of the Guarantor, and any officer or director of the Guarantor or any 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 other Person, whether through the ownership
of voting securities, by contract, or otherwise.
"Cash Equivalents" shall mean, as to any Person, (i) securities issued or
directly and fully guaranteed or issued by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than six
months from the date of acquisition, (ii) time deposits and certificates of
deposit of any Bank, the Administrative Agent, and any commercial bank
incorporated in the United States of recognized standing having capital and
surplus in excess of $500,000,000 with maturities of not more than six months
from the date of acquisition by such Person, (iii) repurchase obligations with a
term of not more than seven days for underlying securities of the types
described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (ii) above, (iv) commercial paper issued by
the parent corporation of any Bank, the Administrative Agent, and any commercial
bank (provided that the parent corporation and the bank are both incorporated in
the United States) of recognized standing having capital and surplus in excess
of $500,000,000 and commercial paper issued by any Person incorporated in the
United States, which commercial paper is rated at least A-1 or the equivalent
thereof by Standard & Poor's Corporation or at least P-1 or the equivalent
thereof by Moody's Investors Service, Inc. and in each case maturing not more
than six months after the date of acquisition by such Person and (v) investments
in money market funds substantially all the assets of which are comprised of
securities of the types described in clauses (i) through (iv) above.
"Consolidated Adjusted Net Worth" shall mean, at any time, the sum of (x)
the Guarantor's Consolidated Net Worth plus (y) the outstanding principal amount
of the Guarantor's Subordinated Indebtedness (to the extent and in the amount
that any portion of such principal amount matures one year or more after the
Final Maturity Date).
"Consolidated Current Assets" shall mean, as to any Person, the current
assets of such Person and its Subsidiaries determined on a consolidated basis.
"Consolidated Current Liabilities" shall mean, as to any Person, the
current liabilities of such Person and its Subsidiaries determined on a
consolidated basis.
"Consolidated Indebtedness" shall mean, for any fiscal quarter, an amount
equal to (x) the sum of (i) the average of the amounts of Indebtedness of the
types listed on Schedule
-15-
III hereto on the last Business Day of each calendar week ending during such
fiscal quarter plus (ii) the amount of all Indebtedness of the Guarantor and its
Subsidiaries (other than Indebtedness of the types listed on Schedule III
hereto) (determined on a consolidated basis) on the last day of such fiscal
quarter plus (iii) without duplication of amounts included in clauses (i) and
(ii) above, the aggregate outstanding amount of Short-term Preferred Stock of
Subsidiaries of the Guarantor issued after the date hereof minus (y) the sum of
(i) the amount of all Cash Equivalents and investments of the type described in
Section 7(m)(viii) of this Guaranty held by OFI or OCI on the last day of such
fiscal quarter plus (ii) the Dollar Equivalent of the amount of all Foreign Cash
Equivalents held by OFP on the last day of such fiscal quarter.
"Consolidated Net Income" shall mean the net income of the Guarantor and
its Subsidiaries determined on a consolidated basis in accordance with generally
accepted accounting principles.
"Consolidated Net Worth" shall mean, as to any Person, the Net Worth of
such Person and its Subsidiaries determined on a consolidated basis (including
therein the portion of such Net Worth reflecting minority interests in
Subsidiaries).
"Debt to Cash Flow Ratio" shall mean the ratio of (i) Consolidated
Indebtedness for any fiscal quarter of the Guarantor to (ii) Net Cash Flow for
the period of four consecutive complete fiscal quarters of the Guarantor (taken
as one accounting period) ending on the last day of such fiscal quarter.
"Designated Subsidiaries" shall mean BBDO Worldwide Inc., Bernard Hodes
Inc., DAS Holdings Inc., DDB Worldwide Communications Group Inc.,
Fleishman-Hillard Inc., OCI, OFI, Omnicom Media Group Holdings Inc., Porter
Novelli Inc., Rapp Collins Worldwide Inc. and TBWA Worldwide Inc.
"Dollar Equivalent" shall mean, with respect to any Foreign Cash
Equivalent denominated in a currency other than U.S. Dollars, the amount of U.S.
Dollars into which the principal amount of such Foreign Cash Equivalent could be
converted at the then applicable Exchange Rate. For the purpose of the foregoing
determination, the "Exchange Rate" shall be the spot rate at which the relevant
currency is offered for sale against delivery of U.S. Dollars on the date of
determination thereof (or, if such date is not a Business Day, the next
preceding Business Day), as set forth in The Wall Street Journal; provided that
if no such rate is set forth in The Wall Street Journal on such date, the
"Exchange Rate" shall be the rate quoted by the Administrative Agent at the
opening of business on such date (or, if such date is not a Business Day, the
next preceding Business Day) for the spot rate at which the relevant currency is
offered for sale by the Administrative Agent against delivery of U.S. Dollars.
"Foreign Cash Equivalents" shall mean (i) time deposits, certificates of
deposit and similar instruments of any Bank or any other commercial bank having
long-term indebtedness rated in its highest rating category by Moody's Investors
Services, Inc. or by Standard & Poor's Corporation, and (ii) such other
securities and investments as shall be approved by the Administrative Agent from
time to time.
-16-
"Indebtedness" shall mean, as to any Person, without duplication, (i) all
indebtedness (including principal, interest, fees and charges) of such Person
for borrowed money or 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 that they are still contingent),
(ii) the face amount of all letters of credit issued for the account of such
Person and all drafts drawn thereunder (other than letters of credit issued in
support of accrued expenses and accounts payable incurred in the ordinary course
of business), (iii) all liabilities secured by any Lien on any property owned by
such Person, whether or not such liabilities have been assumed by such Person,
(iv) the aggregate amount required to be capitalized under leases under which
such Person is the lessee and (v) all Contingent Obligations of such Person.
"Investments in Affiliates" shall mean all amounts paid and the fair
market value of all non-cash delivered in consideration for the purchase of
securities of, or the making of any other investment in, any Person that, after
giving effect to such purchase or other investment, is not a Subsidiary of the
Guarantor but is subject to the exercise by the Guarantor (directly or
indirectly) of significant influence over its operating and financial policies.
"Net Cash Flow" shall mean, for any period, the Consolidated Net Income
for such period without giving effect to any extraordinary gains or losses and
gains or losses from sales of assets (other than sales of inventory in the
ordinary course of business), adjusted by (x) adding thereto the following
items: (i) the amount of all amortization of intangibles and depreciation that
were deducted in arriving at such Consolidated Net Income for such period, (ii)
the portion of such Consolidated Net Income attributable to minority interests
in Subsidiaries, and (iii) the amount of all dividends received during such
period by the Guarantor or any of its Subsidiaries from Persons other than
Subsidiaries of the Guarantor, to the extent not included in calculating
Consolidated Net Income for such period and (y) deducting there from (i) the
amount of all dividends paid by Subsidiaries of the Guarantor to Persons other
than the Guarantor or Wholly-Owned Subsidiaries of the Guarantor during such
period, (ii) the net income for such period of Persons other than Subsidiaries
of the Guarantor, to the extent allocated to the equity interest of the
Guarantor or any such Subsidiary in such persons, and (iii) an amount, if
positive, equal to (x) the amount of all dividends paid by the Guarantor to its
common or preferred shareholders during such period, minus (y) 50% of the
Consolidated Net Income.
"Net Worth" shall mean, as to any Person, the sum of its capital stock,
capital in excess of par or stated value of shares of its capital stock,
retained earnings and any other accounts which, in accordance with generally
accepted accounting principles in the United States, constitutes stockholders
equity, but in any event deducting there from any treasury stock, provided that
each of the foregoing shall be determined without giving effect to any foreign
currency translation adjustments.
"Short-term Preferred Stock" shall mean any preferred stock of any
Subsidiary of the Guarantor that has any maturity or redemption date, or that
can be required to be redeemed at the option of the holder thereof, on or before
the date one year after the Expiry Date (the amount
-17-
of any Short-term Preferred Stock being calculated for the purposes of the
definition of the term "Consolidated Indebtedness" as the higher of the
liquidation preference or the redemption price thereof).
"Subordinated Indebtedness" of any Person shall mean all Indebtedness of
such Person which is subordinated both to the Obligations under the Credit
Agreement and all obligations arising under this Guaranty, on terms and
conditions satisfactory to the Administrative Agent and the Required Banks;
provided that when used with respect to the Guarantor, the term "Subordinated
Indebtedness" shall be deemed to include (i) all Indebtedness of the Guarantor
evidenced by its Zero-Coupon Convertible Notes due 2031 and its Zero-Coupon
Convertible Notes due 2032, in each case as such Debentures (and the respective
indenture governing the terms thereof) are in effect on the date hereof and (ii)
all Indebtedness of the Guarantor evidenced and governed by documentation
containing subordination terms, covenants, mandatory redemption provisions,
events of default and remedies available upon the existence of an event of
default no less favorable to the Banks and no more restrictive on the Guarantor
and its Subsidiaries than those contained in the documentation evidencing and
governing the debt issuances referred to in clause (i) above; in each case as
amended, modified and supplemented from time to time with the consent of the
Administrative Agent and the Required Banks.
"Total Consolidated Capitalization" shall mean, at any time, the sum of
Total Consolidated Indebtedness at such time plus Consolidated Net Worth at such
time.
"Total Consolidated Indebtedness" shall mean, at any time, all
Indebtedness of the Guarantor and its Subsidiaries at such time, determined on a
consolidated basis.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock is at the time owned by such Person
and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any
partnership, association, joint venture or other entity in which such Person
and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity
interest at such time.
9. Continuing Guaranty, Etc. This Guaranty is a continuing one and all
liabilities to which it applies or may apply under the terms hereof shall be
conclusively presumed to have been created in reliance hereon. No failure or
delay on the part of any Guaranteed Party in exercising any right, power or
privilege hereunder and no course of dealing between the Guarantor, any
Guaranteed Party or the holder of any Note shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights, powers and remedies herein
expressly provided are cumulative and not exclusive of any rights, powers or
remedies which any Guaranteed Party or the holder of any Note would otherwise
have. No notice to or demand on the Guarantor in any case shall entitle the
Guarantor to any other further notice or demand in similar or other
circumstances or constitute a waiver of the rights of any Guaranteed Party or
the holder of any Note to any other or further action in any circumstances
without notice or demand.
-18-
10. Successors and Assigns. This Guaranty shall be binding upon the
Guarantor and its successors and assigns and shall inure to the benefit of the
Guaranteed Parties and their successors and assigns.
11. Amendments, Etc. Neither this Guaranty nor any provision hereof may be
changed, waived, discharged or terminated except as provided in Section 11.12 of
the Credit Agreement.
12. Receipt of Credit Agreement. The Guarantor acknowledges that an
executed (or conformed) copy of the Credit Agreement has been made available to
its principal executive officers and such officers are familiar with the
contents thereof.
13. Setoff. In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such rights,
upon the occurrence of an Event of Default each of the Banks is hereby
authorized at any time or from time to time, without presentment, demand,
protest, or other notice of any kind to the Guarantor or to any other Person,
any such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other Indebtedness at
any time held or owing by such Bank (including, without limitation, by branches
and agencies of such Bank and its Affiliates wherever located) to or for the
credit or the account of the Guarantor against and on account of the obligations
of the Guarantor to such Bank under this Guaranty, irrespective of whether or
not such Bank shall have made any demand hereunder and although said
obligations, or any of them, shall be contingent or unmatured.
14. Notices. All notices and other communications hereunder shall be made
at the addresses, in the manner and with the effect provided in Section 11.03 of
the Credit Agreement, provided that, for this purpose, the address of the
Guarantor shall be the one specified opposite its signature below.
15. Reinstatement. If claim is ever made upon any Guaranteed Party or the
holder of any Note for repayment or recovery of any amount or amounts received
in payment or on account of any of the Guaranteed Obligations and any of the
aforesaid payees repays all or part of said amount by reason of (a) any
judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property or (b) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including the Guarantor), the Guarantor shall be and remain liable to the
aforesaid payees hereunder for the amount so repaid or recovered to the same
extent as if such amount had never originally been received by any such payee.
16. Statute of Limitations. Any acknowledgment or new promise, whether by
payment of principal or interest or otherwise and whether by the Borrower or
others (including the Guarantor), with respect to any of the Guaranteed
Obligations shall, if the statute of limitations in favor of the Guarantor
against any Guaranteed Party or the holder of any Note shall have commenced to
run, toll the running of such statute of limitations, and if the period of such
statute of limitations shall have expired, prevent the operation of such statute
of limitations.
-19-
17. Generally Accepted Accounting Principles. The financial statements to
be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with generally accepted accounting principles in the United States
consistently applied throughout the periods involved (except as set forth in the
notes thereto or as otherwise disclosed in writing by the Guarantor to the
Banks); provided that, except as otherwise specifically provided herein, all
computations determining compliance with Section 7 of this Guaranty shall
utilize accounting principles and policies in conformity with those used to
prepare the historical financial statements delivered to the Banks pursuant to
Section 6(e) of this Guaranty.
18. Governing Law, Submission to Jurisdiction. This Guaranty and the
rights and obligations of the Guaranteed Parties, the holders of the Notes and
the Guarantor hereunder shall be construed in accordance with and governed by
the law of the State of New York. Any legal action or proceeding with respect to
this Guaranty may be brought in the courts of the State of New York, and, by
execution and delivery of this Agreement, the Guarantor hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The Guarantor agrees
that if at any time its principal place of business is not in the City and State
of New York, it will irrevocably designate, appoint and empower an agent for
purposes of this Section, in the City and State of New York, as its designee,
appointee and agent to receive, accept and acknowledge for and on its behalf,
and in respect of its property, service of any and all legal process, summons,
notices and documents which may be served in any such action or proceeding. If
for any reason such designee, appointee and agent shall cease to be available to
act as such, the Guarantor agrees to designate a new designee, appointee and
agent in New York City on the terms and for the purposes of this provision
satisfactory to the Administrative Agent. The Guarantor further irrevocably
consents to the service of process out of any of the aforementioned courts in
any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Guarantor at its address set forth
opposite its signature below, such service to become effective 30 days after
such mailing. Nothing herein shall affect the right of any Guaranteed Party or
the holder of any Note to serve process in any other manner permitted by law or
to commence legal proceedings or otherwise proceed against the Guarantor in any
other jurisdiction. The Guarantor hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with the Guaranty brought
in the courts referred to above and hereby further irrevocably waives and agrees
not to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum.
19. Judgment Currency. The obligation of the Guarantor to make payment in
Dollars of any Guaranteed Obligations due hereunder shall not be discharged or
satisfied by any tender, or any recovery pursuant of any judgment, which is
expressed in or converted into any currency other than Dollars, except to the
extent such tender or recovery shall result in the actual receipt by the
respective Guaranteed Party in the United States of America of the full amount
of Dollars expressed to be payable in respect of any such Guaranteed
Obligations. The obligation of the Guarantor to make payment in Dollars as
aforesaid shall be enforceable as an alternative or additional cause of action
for the purpose of recovery in Dollars of the amount, if any, by
-20-
which such actual receipt shall fall short of the full amount of Dollars
expressed to be payable in respect of any such Guaranteed Obligations, and shall
not be affected by judgment being obtained for any other sums due under this
Guaranty.
-21-
SCHEDULE I
----------
MATERIAL SUBSIDIARIES OF THE GUARANTOR
--------------------------------------
(for purposes of Section 6(l) of the Guaranty)
Percentage of Voting
Jurisdiction of Securities Owned
Company Incorporation by the Guarantor Owning Entity
- ------- -------------- -------------------- -------------
Omnicom Europe Limited United Kingdom 100% Guarantor
BBDO Worldwide Inc. New York 100% Guarantor
DDB Worldwide Communications New York 100% Guarantor
Group, Inc.
DDB Holding Europe S.C.A. France 86% Guarantor
TBWA Worldwide Inc. Delaware 100% Guarantor
Fleishman-Hillard Inc. Delaware 100% Guarantor
Bernard Hodes Group Inc. Delaware 100% Guarantor
Omnicom Media Group Holdings Inc. Delaware 100% Guarantor
DAS Holdings Inc. Delaware 100% Guarantor
Porter Novelli Inc. Delaware 100% Guarantor
Rapp Collins Worldwide Inc. Delaware 100% Guarantor
-22-
SCHEDULE II
-----------
EXISTING INDEBTEDNESS OF SUBSIDIARIES
-------------------------------------
(for purposes of Section 7(l) of the Guaranty)
Subsidiary Borrower Lender Total
------------------- ------ -----
DAS Tic Toc De Lage $ 19,548
DAS The Designory Porsche 20,268
DAS Gavin Anderson & Co. Consolidated HSBC 66,187
Hong Kong and Shanghai 18,073
Citibank 531,650
Commonwealth Bank of Australia 8,069
CLS Finance Leases 43,016
------------
666,995
DAS GPC Domestic Lucent 30,767
Xerox 16,582
------------
47,349
DAS Grizzard Xerox 195,115
IBM Credit 369,676
IBM Credit 199,923
------------
764,714
DAS Lieber Levett Koenig Farese Babcock Saatchi 102,706
Chase Manhattan Bank 91,663
------------
194,369
DAS MARC Domestic Aurora Insurance Company 35,362
DAS Matthews Media Group Inc. Capital Lease Phone 51,461
DAS MarketStar (Subsid as 01/01) Lucent 204,245
First Security Bank 151,719
ATT 52,480
------------
408,444
-23-
Subsidiary Borrower Lender Total
------------------- ------ -----
DAS Porter Novelli Consolidated Northview Bank & Trust 4,421
DAS Premier Magazines Inc. Consolidated Bank Itau 54,156
DAS Interbrand Corp. Consolidated Wood 20,218
DAS U30 Group Dryad 39,794
OMG Novus Print Media Integris 119,885
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Total $ 2,446,984
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SCHEDULE III
TYPES OF INDEBTEDNESS
(for purposes of the definition of "Consolidated Indebtedness" in Section 8 of
the Guaranty)
1. Indebtedness outstanding under the Amended and Restated Credit Agreement
dated as of May 10, 1996 amended and restated as of February 20, 1998, and
as subsequently amended from time to time, among the Borrowers and certain
financial institutions.
2. Indebtedness evidenced by the Guarantor's Zero-Coupon Convertible Notes
due 2031.
3. Indebtedness evidenced by the Guarantor's Zero-Coupon Convertible Notes
due 2032.
4. Indebtedness having a maturity of one year or less incurred by the
Borrowers under committed or uncommitted lines of credit with one or more
commercial banks.
5. Indebtedness evidenced by the Guarantor's French Franc 1,000,000,000 Notes
of 1998 due June 24, 2005.
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