[Execution Counterpart]
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OMNICOM FINANCE INC. and OMNICOM FINANCE LIMITED,
as Borrowers
CREDIT AGREEMENT
Dated as of May 10, 1996
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$360,000,000
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ABN AMRO BANK N.V., NEW YORK BRANCH
as Administrative Agent and Co-Arranger,
CHASE SECURITIES INC.,
as Syndication Agent and Co-Arranger
and
ABN AMRO BANK N.V., NEW YORK BRANCH
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)
as Managing Banks
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TABLE OF CONTENTS(1)
Page
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Section 1. Definitions and Principles of Construction...................... 1
1.01 Defined Terms..................................................... 1
1.02 Principles of Construction........................................ 18
Section 2. Amount and Terms of Revolving Credit............................ 18
2.01 The Syndicated Loans.............................................. 19
2.02 Minimum Amount of Each Borrowing; Number of
Interest Periods................................................ 20
2.03 Notice of Borrowing............................................... 20
2.04 Disbursement of Funds............................................. 22
2.05 Notes............................................................. 23
2.06 Conversions....................................................... 25
2.07 Pro Rata Borrowings............................................... 25
2.08 Interest.......................................................... 25
2.09 Interest Periods.................................................. 26
2.10 Increased Costs, Illegality, etc.................................. 27
2.11 Compensation...................................................... 30
2.12 Change of Applicable Lending Office............................... 30
2.13 Competitive Bid Loans............................................. 31
2.14 Swingline Loans................................................... 36
Section 3. Commercial Paper Operations...................................... 37
3.01 Issuance of Initial Letter of Credit; Substitute
Letters of Credit............................................... 37
3.02 Agreement to Repay Disbursements Under Letter of
Credit.......................................................... 40
3.03 Issuance of Commercial Paper...................................... 41
Section 4. Facility Fee; Fees; Reductions of Commitments;
Expiry Date; Increase of Commitments............................ 44
4.01 Fees.............................................................. 44
4.02 Termination of Commitments........................................ 45
4.03 Expiry Date....................................................... 45
4.04 Increase of Commitments........................................... 47
Section 5. Prepayments; Payments........................................... 47
5.01 Voluntary Prepayments............................................. 47
5.02 Mandatory Prepayments............................................. 48
5.03 Method and Place of Payment....................................... 49
5.04 Net Payments...................................................... 49
Section 6. Conditions Precedent............................................ 51
6.01 Rating Letter..................................................... 51
6.02 Notes............................................................. 51
6.03 No Default; Representations and Warranties........................ 52
6.04 Opinions of Counsel............................................... 52
6.05 Subsequent Legal Opinions......................................... 52
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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)
Page
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6.06 Corporate Documents; Proceedings.................................. 53
6.07 Participation Agreement........................................... 53
6.08 Guaranty.......................................................... 54
6.09 Commercial Paper.................................................. 54
6.10 Existing Credit Agreement......................................... 54
6.11 Existing Letter of Credit......................................... 54
Section 7. Representations, Warranties and Agreements...................... 54
7.01 Corporate Status.................................................. 55
7.02 Corporate Power and Authority..................................... 55
7.03 No Violation...................................................... 55
7.04 Governmental Approvals............................................ 56
7.05 Litigation........................................................ 56
7.06 True and Complete Disclosure...................................... 56
7.07 Use of Proceeds: Margin Regulations............................... 56
7.08 Tax Returns and Payments.......................................... 57
7.09 Compliance with ERISA............................................. 57
7.10 Subsidiaries...................................................... 58
7.11 Compliance with Statutes, etc..................................... 58
7.12 Investment Company Act............................................ 58
7.13 Public Utility Holding Company Act................................ 58
7.14 Commercial Paper.................................................. 58
Section 8. Affirmative Covenants........................................... 58
8.01 Information Covenants............................................. 59
8.02 Books, Records and Inspections.................................... 59
8.03 Corporate Franchises.............................................. 60
8.04 Compliance with Statutes, etc..................................... 60
8.05 ERISA............................................................. 60
8.06 End of Fiscal Years; Fiscal Quarters.............................. 61
Section 9. Negative Covenants.............................................. 61
9.01 Liens............................................................. 61
9.02 Consolidation, Merger, Sale of Assets, etc........................ 61
9.03 Leases............................................................ 62
9.04 Indebtedness...................................................... 62
9.05 Advances, Investments and Loans................................... 62
9.06 Transactions with Affiliates...................................... 62
9.07 Limitation on Restrictions on Subsidiary
Dividends and Other Distributions............................... 62
9.08 Business.......................................................... 63
9.09 Sale of Commercial Paper.......................................... 63
9.10 Dividends......................................................... 63
Section 10. Events of Default.............................................. 63
10.01 Payments......................................................... 64
10.02 Representations, etc............................................. 64
10.03 Covenants........................................................ 64
10.04 Default Under Other Agreements................................... 64
10.05 Bankruptcy, etc.................................................. 64
10.06 ERISA............................................................ 65
10.07 Guaranty......................................................... 66
(ii)
Page
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10.08 Ownership of the Borrowers....................................... 66
10.09 Ownership of the Guarantor....................................... 66
10.10 Judgments........................................................ 66
10.11 Fundamental Change of Guarantor.................................. 66
Section 11. The Administrative Agent....................................... 67
11.01 Appointment...................................................... 67
11.02 Nature of Duties................................................. 68
11.03 Lack of Reliance on the Administrative Agent..................... 68
11.04 Certain Rights of the Administrative Agent....................... 69
11.05 Reliance......................................................... 69
11.06 Indemnification.................................................. 69
11.07 The Administrative Agent in its Individual
Capacity....................................................... 70
11.08 Holders.......................................................... 70
11.09 Resignation By the Administrative Agent.......................... 70
11.10 The Co-Arrangers; Syndication Agent; Managing
Banks.......................................................... 71
11.11 Replacement...................................................... 71
Section 12. Miscellaneous.................................................. 71
12.01 Payment of Expenses, etc......................................... 71
12.02 Right of Setoff.................................................. 72
12.03 Notices.......................................................... 72
12.04 Benefit of Agreement............................................. 73
12.05 No Waiver: Remedies Cumulative................................... 75
12.06 Payments Pro Rata................................................ 75
12.07 Calculations; Computations....................................... 76
12.08 Governing Law; Submission to Jurisdiction;
Venue.......................................................... 76
12.09 Obligation to Make Payments in Dollars........................... 77
12.10 Counterparts..................................................... 77
12.11 Effectiveness.................................................... 78
12.12 Headings Descriptive............................................. 78
12.13 Amendment or Waiver.............................................. 78
12.14 Survival......................................................... 78
12.15 Domicile of Loans................................................ 79
12.16 Limitation on Additional Amounts, etc............................ 79
(iii)
SCHEDULE I - Schedule of Commitments
SCHEDULE II - Bank Addresses and Lending Offices
SCHEDULE III - Subsidiaries
EXHIBIT A-1 - Form of Notice of Borrowing
EXHIBIT A-2 - Form of Notice of Swingline Borrowing
EXHIBIT B-1 - Form of Tranche A Note
EXHIBIT B-2 - Form of Tranche B Note
EXHIBIT B-3 - Form of Swingline Note
EXHIBIT C-1 - Form of Opinion of Counsel (New York) - OFI
EXHIBIT C-2 - Form of Opinion of Counsel (New York) - Banks
EXHIBIT C-3 - Form of Opinion of Counsel (New York) - OFL
EXHIBIT C-4 - Form of Opinion of Counsel (United Kingdom) -OFL
EXHIBIT D-1 - Form of Officers' Certificate - OFI
EXHIBIT D-2 - Form of Officer's Certificate - OFL
EXHIBIT D-3 - Form of Officers' Certificate - Guarantor
EXHIBIT E - Form of Participation Agreement
EXHIBIT F - Form of Irrevocable Letter of Credit
EXHIBIT G - Form of Promissory Note - Commercial Paper
EXHIBIT H - Form of Depositary Agreement
EXHIBIT I - [Intentionally Omitted]
EXHIBIT J - Form of Letter of Credit Request
EXHIBIT K - Guaranty
EXHIBIT L - Form of Competitive Bid Quote Request
EXHIBIT M - Form of Competitive Bid Quote
(iv)
CREDIT AGREEMENT, dated as of May 10, 1996 among OMNICOM FINANCE INC., a
corporation organized and existing under the laws of Delaware ("OFI"); OMNICOM
FINANCE LIMITED, a corporation organized and existing under the laws of England
("OFL" and, together with OFI, individually, a "Borrower" and collectively the
"Borrowers"); the financial institutions listed in Schedule I (each a "Bank"
and, collectively, the "Banks"); ABN AMRO BANK N.V., NEW YORK BRANCH ("ABN
AMRO"), acting as the maker of Swingline Loans referred to in Section 2.14 (in
such capacity, the "Swingline Bank") and as Letter of Credit Issuer; and ABN
AMRO BANK N.V., NEW YORK BRANCH, 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 that the Letter of Credit Issuer, the
Banks and the Swingline Bank extend credit to each of them in an aggregate
principal amount not to exceed (except as provided herein) $360,000,000 at any
time outstanding as to both of them combined, and the Letter of Credit Issuer,
the Banks and the Swingline Bank are prepared to extend such credit upon the
terms and conditions hereof.
NOW, THEREFORE, IT IS AGREED:
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):
"Absolute Rate Auction" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Rates pursuant to Section 2.13.
"Absolute Rate Loans" shall mean Competitive Bid Loans the interest rates
of which are determined on the basis of Competitive Bid Rates pursuant to an
Absolute Rate Auction.
"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 9.06, 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
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such other Person, whether through the ownership of voting securities, by
contract or otherwise.
"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 11.09.
"Administrative Agent's Account" shall mean account no. 516082017200
(reference Omnicom) at the Payment Office.
"Agreement" shall mean this Credit Agreement, as modified, supplemented or
amended from time to time.
"Applicable Lending Office" shall mean (a) with respect to each Bank, (i)
such Bank's Base Rate Lending Office in the case of a Base Rate Loan, (ii) such
Bank's Eurodollar Lending Office in the case of a Eurodollar Rate Loan and (iii)
such Bank's Competitive Bid Lending Office in the case of a Competitive Bid
Loan; and (b) with respect to the Swingline Bank, the Swingline Lending Office.
"Applicable Margin" for Eurodollar Rate Loans that are Loan Portion Loans
and Eurodollar Rate Loans that are Unutilized L/C Loans, "Applicable Facility
Fee Rate", "Applicable Letter of Credit Fee Rate" and "Applicable Letter of
Credit Usage Fee Rate" shall mean, during the period from and including the
first Business Day after the date on which the Administrative Agent shall have
received (i) the financial statements described in Section 7(a) of the Guaranty
as at and for any fiscal period and (ii) the accompanying certificate required
to be delivered under Section 7(a)(iii) of the Guaranty, to but excluding the
first Business Day after the date on which the Administrative Agent shall have
received (x) the financial statements described in Section 7(a) of the Guaranty
as at and for the next succeeding fiscal period and (y) the accompanying
certificate required to be delivered under Section 7(a)(iii) of the Guaranty,
the respective rates per annum set forth opposite the range of the Debt to Cash
Flow Ratio set forth below which encompasses the Debt to Cash Flow Ratio set
forth in such certificate delivered under Section 7(a)(iii) of the Guaranty
(provided that (a) during the period from the date hereof to but excluding the
first Business Day after the date on which the Administrative Agent shall have
first received the financial statements and certificate under clauses (i), (ii)
and (iii) of Section 7(a) of the Guaranty, the "Applicable Margin" for
Eurodollar Rate Loans that are Loan Portion Loans and Eurodollar Rate Loans that
are Unutilized L/C Loans, "Applicable Facility Fee Rate", "Applicable Letter of
Credit Fee Rate" and "Applicable Letter of Credit Usage Fee Rate" during such
period shall be determined as though the Debt to Cash Flow Ratio was 2.0 to 1,
and (b) if the Guarantor shall fail
Credit Agreement
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timely to deliver such financial statements or certificate, the "Applicable
Margin" for Eurodollar Rate Loans that are Loan Portion Loans and Eurodollar
Rate Loans that are Unutilized L/C Loans, "Applicable Facility Fee Rate",
"Applicable Letter of Credit Fee Rate" and "Applicable Letter of Credit Usage
Fee Rate" during the period from and including the date by which such financial
statements and certificate were required to be delivered to but excluding the
first Business Day after the date on which the Administrative Agent receive such
financial statements and certificate, shall be determined as if the relevant
Debt to Cash Flow Ratio were greater than 4.25):
Applicable Applicable
Margin Applicable Applicable Letter of
for Loan Margin for Applicable Letter Credit
Debt to Cash Portion Unutilized Facility of Credit Usage
Flow Ratio Loans L/C Loans Fee Rate Fee Rate Fee Rate
- ------------ ---------- ----------- ---------- ---------- --------
Less than or
equal to
3.5 to 1 .2000% .1750% .1000% .0250% .1750%
Greater than
3.5 to 1 but
less than or
equal to 4.25
to 1 .2500% .2000% .1250% .0500% .2000%
Greater than
4.25 to 1 .3750% .3000% .1750% .0750% .3000%
Notwithstanding the foregoing, if a Rating Level is in effect, the "Applicable
Margin" for Eurodollar Rate Loans that are Loan Portion Loans and Eurodollar
Rate Loans that are Unutilized L/C Loans, the "Applicable Facility Fee Rate",
the "Applicable Letter of Credit Fee Rate" and the "Applicable Letter of Credit
Usage Fee Rate" shall be the respective rates set forth below opposite the
applicable Rating Level:
Applicable Applicable
Margin Applicable Applicable Letter of
for Loan Margin for Applicable Letter Credit
Rating Portion Unutilized Facility of Credit Usage
Level Loans L/C Loans Fee Rate Fee Rate Fee Rate
- ------ ---------- ----------- ---------- ---------- --------
Rating
Level 1 .1900% .1500% .0850% .0400% .1500%
Rating
Level 2 .2000% .1750% .1000% .0250% .1750%
Rating
Level 3 .2500% .1750% .1000% .0750% .1750%
Rating
Level 4 .2750% .2000% .1250% .0750% .2000%
Rating
Level 5 .3750% .3000% .1750% .0750% .3000%
provided 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
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which is one level higher than the Rating Level which would otherwise apply to
such Guarantor Subordinated Debt (for which purpose, 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 10.05.
"Base Rate" shall mean on any day the higher of (x) the Prime Lending Rate
and (y) 1/2 of 1% in excess of the Federal Funds Rate.
"Base Rate Lending Office" shall mean, with respect to each Bank, the
office of such Bank specified as its "Base Rate Lending Office" opposite its
name on Schedule II or such other office, Subsidiary or Affiliate of such Bank
as such Bank may from time to time specify as such to the Borrowers and the
Administrative Agent.
"Base Rate Loan" shall mean any Syndicated Loan designated or deemed
designated as such by the relevant Borrower at the time of the incurrence
thereof or conversion thereto by such Borrower.
"Borrower" and "Borrowers" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrowing" shall mean the borrowing of Syndicated Loans of one Type of a
single Tranche from all the Banks having Commitments of the respective Tranche
on a given date (or the conversion of such Loan or Loans of a single Tranche of
a Bank or Banks on a given date) and, for the purposes of Section 2.11, shall
include the borrowing of Competitive Bid Loans.
"Business Day" shall mean (i) for all purposes other than as covered by
clause (ii) below, any day except Saturday, Sunday and any day which shall be in
New York City a legal holiday or a day on which banking institutions are
authorized or required by law or other government action to close, and (ii) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Rate Loans and Loans to OFL, any day which
is a Business Day described in clause (i) above and which is also a day for
trading by and between banks in the London interbank Eurodollar market.
"Chase" shall mean The Chase Manhattan Bank (National Association) and its
successors.
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"Closing Date" shall mean the date of the first Credit Event that occurs on
or after the date hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Commercial Paper" shall mean commercial paper of either Borrower which is
sold in the U.S. commercial paper market, backed by the Letter of Credit and
issued pursuant to the Depositary Agreement and (x) which may be issued in
book-entry form (in accordance with the Depositary Agreement and the DTC
Documents and evidenced by the Master Note) or (y) which may be issued in the
form of promissory notes of such Borrower substantially in the form of Exhibit
G. The term "Commercial Paper" shall not include commercial paper that is not
backed by the Letter of Credit.
"Commercial Paper Account" shall mean an OFI Commercial Paper Account or an
OFL Commercial Paper Account.
"Commitment" shall mean, for each Bank, at any time, the sum of such Bank's
Tranche A Loan Commitment (if any) at such time and such Bank's Tranche B Loan
Commitment (if any) at such time.
"Competitive Bid Borrowing" shall have the meaning assigned to that term in
Section 2.13(b)(i).
"Competitive Bid Lending Office" shall mean, with respect to each Bank, the
office of such Bank specified as its "Competitive Bid Lending Office" opposite
its name on Schedule II or such other office, Subsidiary or Affiliate of such
Bank as such Bank may from time to time specify as such to the Borrowers and the
Administrative Agent.
"Competitive Bid Loans" shall mean the loans provided for by Section 2.13.
"Competitive Bid Loan Limit" shall have the meaning provided in Section
2.13(c).
"Competitive Bid Margin" shall have the meaning assigned to that term in
Section 2.13(c)(ii)(C).
"Competitive Bid Note" has the meaning provided in Section 2.05(d).
"Competitive Bid Quote" shall mean an offer in accordance with Section
2.13(b) by a Bank to make a Competitive Bid Loan with one single specified
interest rate.
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"Competitive Bid Quote Request" shall have the meaning provided in Section
2.13(b).
"Competitive Bid Rate" shall have the meaning assigned to that term in
Section 2.13(c)(ii)(D).
"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, the Guaranty, all
Commercial Paper and the Depositary Agreement.
"Credit Event" shall mean (i) the making of any Loan, (ii) the issuance of
the Letter of Credit, or (iii) any issuance of Commercial Paper. A conversion
pursuant to Section 2.06 shall not be a Credit Event.
"Debt to Cash Flow Ratio" shall mean the ratio of (i) Consolidated
Indebtedness (as defined in the Guaranty) for any fiscal quarter of the
Guarantor to (ii) Net Cash Flow (as defined in the Guaranty) for the period of
four consecutive
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complete fiscal quarters of the Guarantor (taken as one accounting period)
ending on the last day of such fiscal quarter.
"Default" shall mean any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"Depositary" shall mean Citibank, N.A., as Depositary under the Depositary
Agreement, or such other banking institution headquartered in New York City, as
the Borrowers shall appoint with the prior written consent of the Administrative
Agent and the Letter of Credit Issuer as issuing and paying agent for Commercial
Paper under the Depositary Agreement.
"Depositary Agreement" shall mean the Depositary Agreement among the
Depositary, the Administrative Agent, the Letter of Credit Issuer and the
Borrowers, in substantially the form of Exhibit H hereto (with such changes
thereto as may be approved by the parties thereto), as modified, supplemented or
amended from time to time.
"Dollars" and the sign "$" shall each mean freely transferable lawful money
of the United States.
"Drawing" shall have the meaning provided in Section 3.02(a).
"DTC Documents" shall have the meaning provided in the Depositary
Agreement.
"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 would be a member of
the same "controlled group" within the meaning of Section 414(b), (m), (c) and
(o) of the Code.
"Eurodollar Auction" shall mean a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins based on Quoted Rates pursuant to Section
2.13.
"Eurodollar Lending Office" shall mean, with respect to each Bank, the
office of such Bank specified as its "Eurodollar Lending Office" opposite its
name on Schedule II or such other office, Subsidiary or Affiliate of such Bank
as such Bank may
Credit Agreement
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from time to time specify as such to the Borrowers and the Administrative Agent.
"Eurodollar Market Loan" shall mean any Competitive Bid Loan the interest
rate on which is determined on the basis of Quoted Rates plus the Competitive
Bid Margin pursuant to a Eurodollar Auction.
"Eurodollar Rate Loan" shall mean any Syndicated Loan designated or deemed
designated as such by the relevant Borrower at the time of the incurrence
thereof or conversion thereto by such Borrower and, for the purposes of the
definitions of "Applicable Margin", "Business Day", "Quoted Rate" and Sections
2.10 and 2.11 hereof, Eurodollar Market Loans and, for the purposes of Section
2.11, Absolute Rate Loans.
"Event of Default" shall have the meaning provided in Section 10.
"Existing Credit Agreement" shall mean the Second Amended and Restated
Credit Agreement dated as of June 30, 1988 among OFI, certain of the Banks and
certain other parties signatory thereto, as modified, supplemented or amended
from time to time on or before the Closing Date.
"Existing Indebtedness" shall have the meaning provided in Section 9.04.
"Expiry Date" shall have the meaning provided in Section 4.03.
"Face Amount" shall mean, with respect to any Commercial Paper, the amount
of such Commercial Paper payable at the maturity thereof.
"Facility Fee" shall have the meaning provided in Section 4.01(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 ABN AMRO from three Federal funds brokers of recognized standing
selected by it.
"Fees" shall mean all amounts payable pursuant to or referred to in Section
4.01.
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- 9 -
"Foreign Subsidiary" shall mean any Subsidiary which is not organized under
the laws of the United States of America, any 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.
"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 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 6.08.
"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 Eurodollar
Rate Loan, the second Business Day prior to the commencement of any Interest
Period relating to such Eurodollar Rate Loan.
Credit Agreement
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"Interest Period" shall have the meanings provided in Sections 2.09 and
2.13(b).
"L/C Subaccount" shall mean an OFI L/C Subaccount or an OFL L/C Subaccount.
"Letter of Credit" shall mean the irrevocable direct pay Letter of Credit
in substantially the form of Exhibit F hereto, to be issued by the Letter of
Credit Issuer to the Depositary pursuant to Section 3.01, and includes any
amendment, extension or replacement thereof.
"Letter of Credit Fee" shall have the meaning provided in Section 4.01(b).
"Letter of Credit Issuer" shall mean ABN AMRO acting in the capacity as
issuer of the Letter of Credit.
"Letter of Credit Request" shall have the meaning provided in Section
3.01(a).
"Letter of Credit Termination Date" shall have the meaning provided in
Section 3.01(g).
"Letter of Credit Usage Fee" shall have the meaning provided in Section
4.01(c).
"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 mean each Tranche A Loan, each Tranche B Loan, each
Competitive Bid Loan and each Swingline Loan.
"Loan Portion Commitment" shall mean, at any time, that portion of the
Total Commitment equal to the amount by which the Total Commitment exceeds the
Total Letter of Credit Commitment.
"Loan Portion Loan" shall mean a Tranche A Loan or Tranche B Loan allocated
to the Loan Portion Commitment pursuant to Section 2.01.
"Managing Banks" shall mean ABN AMRO and Chase.
Credit Agreement
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"Margin Stock" shall have the meaning provided in Regulation U of the Board
of Governors of the Federal Reserve System.
"Master Note" shall mean a promissory note substantially in the form of
Exhibit A to the Depositary Agreement.
"Moody's" shall mean Moody's Investors Service, Inc., or any successor
thereto.
"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 mean each Tranche A Note, each Tranche B Note, each
Competitive Bid Note and each Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section 2.03.
"Notice of Swingline Borrowing" shall have the meaning provided in Section
2.14(b).
"Notice of Conversion" shall have the meaning provided in Section 2.06.
"Notice Office" shall mean the office of the Administrative Agent located
at 335 Madison Avenue, New York, New York 10017, 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, the
Letter of Credit Issuer, the Swingline Bank or any Bank pursuant to the terms of
this Agreement or any other Credit Document.
"OFI Commercial Paper Account" shall have the meaning provided in the
Depositary Agreement, and shall, for purposes hereof, mean a Commercial Paper
Account of OFI.
"OFI L/C Subaccount" shall have the meaning provided in the Depositary
Agreement, and shall, for purposes hereof, mean an L/C Subaccount of OFI.
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"OFL Commercial Paper Account" shall have the meaning provided in the
Depositary Agreement, and shall, for purposes hereof, mean a Commercial Paper
Account of OFL.
"OFL L/C Subaccount" shall have the meaning provided in the Depositary
Agreement, and shall, for purposes hereof, mean an L/C Subaccount of OFL.
"Outstanding Commercial Paper Participation" shall mean, for any Bank, at
any time, the sum of (a) such Bank's Tranche A Participation Percentage at such
time, if any, of all outstanding Tranche A Commercial Paper at such time plus
(b) such Bank's Tranche B Participation Percentage at such time, if any, of all
outstanding Tranche B Commercial Paper at such time.
"Participant" shall have the meaning provided in Section 3.01(b).
"Participation Agreement" shall have the meaning provided in Section
3.01(b).
"Payment Office" shall mean, with respect to each of the Administrative
Agent and the Letter of Credit Issuer, its office located at 335 Madison Avenue,
New York, New York 10017, or such other office as the Administrative Agent
and/or the Letter of Credit Issuer may hereafter designate in writing 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.
"Prime Lending Rate" shall mean the rate which ABN AMRO announces from time
to time as its prime lending rate, the Prime Lending Rate to change when and as
such prime lending rate changes. The Prime Lending Rate is a reference rate and
does not necessarily represent the lowest or best rate actually charged to any
customer. ABN AMRO may make commercial loans or other loans at rates of interest
at, above or below the Prime Lending Rate.
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"Quoted Base Rate" shall mean, with respect to each Interest Period for a
Eurodollar Rate Loan, (a) the rate per annum appearing on the Telerate Screen
Page 3750 (or such other page or service as may replace that page in that
service) as of 11:00 a.m. London time two Business Days prior to the first day
of such Interest Period for such Loan as the London Interbank Offered Rate for
Dollar deposits 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 the Telerate Screen Page 3750 or if said page shall cease to be publicly
available or if the information contained on said page, in the reasonable
judgment of the Managing Banks, shall cease accurately to reflect the rate
offered by leading banks in the London interbank market ("London Interbank
Offered Rate") (as reported by any publicly available source of similar market
data selected by the Managing Banks that, in the reasonable judgment of the
Managing Banks, accurately reflects the London Interbank Offered Rate), the
average of the offered quotation to first-class banks in the London interbank
Eurodollar market by each of the Reference Banks for Dollar deposits of amounts
comparable to the outstanding principal amount of the Eurodollar Rate Loan for
which an interest rate is then being determined with maturities comparable to
the Interest Period to be applicable to such Eurodollar 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 Quoted
Base Rate shall be based on the quotation or quotations provided to the
Administrative Agent by the other Reference Bank or Reference Banks, divided
(and rounded upward to the next whole multiple of 1/16 of 1%).
"Quoted Rate" shall mean, with respect to each Interest Period for a
Eurodollar Rate Loan (i) the Quoted Base Rate applicable thereto divided (and
rounded upward to the next whole multiple of 1/16 of 1%) 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.
"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 A1 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.
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"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 (a) there exists a Moody's Rating or S&P Rating
or both but (b) none of Rating Level 1, Rating Level 2, Rating Level 3 or Rating
Level 4 is in effect.
"Reference Banks" shall mean ABN AMRO, Chase and Mellon Bank, N.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 2.10(c).
"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 Services, or any successor
thereto.
"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) the
currently in effect by S&P.
"SEC" shall have the meaning provided in Section 8.01(c).
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"Specified Event of Default" shall mean (a) an Event of Default described
in any of Sections 10.01(i), 10.01(ii) (in respect of interest only), 10.04 or
10.10, (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 and (d) the
Guarantor shall deny or disaffirm the Guarantor's obligations under the
Guaranty.
"Specified Subsidiary" shall mean (i) DDB Needham Heye & Partner
Werbeagentur GmbH, (ii) DDB Needham Heye & Partner GmbH, (iii) Bernard Hodes
Advertising, Ltd., (iv) Interbrand Corporation, (v) Interbrand Design, Inc.,
(vi) DDB Needham Worldwide Warszawa.
"Stated Amount" shall mean the amount of the Letter of Credit as described
in Section 3.01(a), as such amount may be reduced or increased, as the case may
be, as provided in Section 3.01(d) or (k).
"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.
"Swingline Bank" shall have the meaning provided in the first paragraph of
this Agreement.
"Swingline Borrowing" shall mean the borrowing of a Swingline Loan from the
Swingline Bank.
"Swingline Commitment" shall mean the obligation of the Swingline Bank to
make Swingline Loans in an aggregate outstanding principal amount not at any
time exceeding $20,000,000.
"Swingline Lending Office" shall mean the office of the Swingline Bank
specified as the "Swingline Lending Office" opposite its name on Schedule II or
such other office, Subsidiary or Affiliate of such Person as the Swingline Bank
may from time to time specify as such to the Borrowers and the Administrative
Agent.
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"Swingline Loan" shall have the meaning provided in Section 2.14.
"Swingline Note" shall have the meaning provided in Section 2.05(e).
"Syndicated Loan" shall mean a Tranche A Loan or a Tranche B Loan.
"Taxes" shall have the meaning provided in Section 5.04.
"Total Commitment" shall mean, at any time, the sum of the Commitments of
each of the Banks at such time.
"Total Letter of Credit Commitment" shall mean the portion of the Total
Commitments available for the issuance of the Letter of Credit hereunder, which
portion is initially $300,000,000, as the same may be reduced, increased,
cancelled and/or reinstated pursuant to Section 3.01(l).
"Total Tranche A Loan Commitment" shall mean, at any time, the sum of the
Tranche A Loan Commitments of each of the Banks at such time.
"Total Tranche B Loan Commitment" shall mean, at any time, the sum of the
Tranche B Loan Commitments of each of the Banks at such time.
"Tranche" shall mean the respective facility and commitments utilized in
making Syndicated Loans hereunder and issuing Commercial Paper pursuant hereto,
with there being two separate Tranches, i.e., Tranche A and Tranche B.
"Tranche A Commercial Paper" shall mean Commercial Paper issued after the
Closing Date and not designated by the relevant Borrower as Tranche B Commercial
Paper at the time of the issuance thereof with respect to such Borrower pursuant
to Section 3.03(a).
"Tranche A Loan" shall have the meaning provided in Section 2.01(a).
"Tranche A Loan Commitment" shall mean, for each Bank, the amount set forth
opposite such Bank's name in Schedule I hereto directly below the column
entitled "Tranche A Loan Commitment", as same may be (x) reduced from time to
time pursuant to Section 4.02 and/or Section 10, (y) increased pursuant to
Section 4.04 and/or (z) adjusted from time to time as a result of assignments to
or from such Bank pursuant to Section 12.04(b).
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"Tranche A Note" shall have the meaning provided in Section 2.05(a).
"Tranche A Participation Percentage" shall mean, with respect to each Bank,
the percentage set forth opposite such Bank's name on Annex A to the
Participation Agreement directly below the column entitled "Tranche A
Participation Percentage".
"Tranche B Commercial Paper" shall mean Commercial Paper issued after the
Closing Date and designated by the relevant Borrower as Tranche B Commercial
Paper at the time of the issuance thereof with respect to such Borrower pursuant
to Section 3.03(a).
"Tranche B Loan" shall have the meaning provided in Section 2.01(b).
"Tranche B Loan Commitment" shall mean, for each Bank, the amount set forth
opposite such Bank's name in Schedule I hereto directly below the column
entitled "Tranche B Loan Commitment", as same may be (x) reduced from time to
time pursuant to Section 4.02 and/or Section 10, (y) increased pursuant to
Section 4.04 and/or (z) adjusted from time to time as a result of assignments to
or from such Bank pursuant to Section 12.04(b).
"Tranche B Note" shall have the meaning provided in Section 2.05(a).
"Tranche B Participation Percentage" shall mean, with respect to each Bank,
the percentage set forth opposite such Bank's name on Annex A to the
Participation Agreement directly below the column entitled "Tranche B
Participation Percentage".
"Type" shall mean any type of Syndicated Loan determined with respect to
the interest option applicable thereto, i.e., a Base Rate Loan or a Eurodollar
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.
"United States" and "U.S." shall each mean the United States of America.
Credit Agreement
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"Unpaid Drawing" shall have the meaning specified in Section 3.02(a).
"Unutilized L/C Commitment" shall mean, at any time, the Total Letter of
Credit Commitment less the sum of (i) the Face Amount of all outstanding
Commercial Paper and (ii) all Unpaid Drawings in respect of Commercial Paper.
"Unutilized L/C Loan" shall mean a Tranche A Loan or Tranche B Loan
allocated to the Unutilized L/C Commitment pursuant to Section 2.01.
"Unutilized Total Tranche A Commitment" shall mean, at any time, the Total
Tranche A Loan Commitment at such time less the sum of (i) the aggregate
principal amount of all Tranche A Loans then outstanding, (ii) the Face Amount
of all outstanding Tranche A Commercial Paper plus (iii) when the Letter of
Credit is outstanding, the amount of all Unpaid Drawings in respect of Tranche A
Commercial Paper.
"Unutilized Total Tranche B Commitment" shall mean, at any time, the Total
Tranche B Loan Commitment at such time less the sum of (i) the aggregate
principal amount of all Tranche B Loans then outstanding, (ii) the Face Amount
of all outstanding Tranche B Commercial Paper plus (iii) when the Letter of
Credit is outstanding, the amount of all Unpaid Drawings in respect of Tranche B
Commercial Paper.
"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.
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 Revolving Credit.
Credit Agreement
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2.01 The Syndicated Loans. (a) Subject to and upon the terms and conditions
set forth herein, each Bank with a Tranche A Loan Commitment severally agrees,
at any time and from time to time prior to the Expiry Date, to make loans (each,
a "Tranche A Loan" and collectively, as the context requires, the "Tranche A
Loans") to each Borrower, which Tranche A Loans (i) shall, at the option of such
Borrower, be Base Rate Loans or Eurodollar Rate Loans, provided that, except as
otherwise specifically provided in Section 2.10(b), all Tranche A Loans
comprising the same Borrowing shall at all times be of the same Type, and (ii)
may be prepaid and reborrowed in accordance with the provisions hereof;
provided, however, that the aggregate principal amount of Tranche A Loans
outstanding from any Bank shall at no time exceed (after giving effect to the
use of the proceeds of any Tranche A Loan then being made) an amount equal to
(i) the Tranche A Loan Commitment of such Bank at such time less (ii) the sum of
(x) an amount equal to the Face Amount of all outstanding Tranche A Commercial
Paper multiplied by such Bank's Tranche A Participation Percentage and (y) an
amount equal to the principal amount of all Unpaid Drawings in respect of
Tranche A Commercial Paper multiplied by such Bank's Tranche A Participation
Percentage. More than one Borrowing may occur on the same date.
(b) Subject to and upon the terms and conditions set forth herein, each
Bank with a Tranche B Loan Commitment severally agrees, at any time and from
time to time prior to the Expiry Date, to make loans (each, a "Tranche B Loan"
and collectively, as the context requires, the "Tranche B Loans") to each
Borrower, which Tranche B Loans (i) shall, at the option of such Borrower, be
Base Rate Loans or Eurodollar Rate Loans, provided that, except as otherwise
specifically provided in Section 2.10(b), all Tranche B Loans comprising the
same Borrowing shall at all times be of the same Type, and (ii) may be prepaid
and reborrowed in accordance with the provisions hereof; provided, however, that
the aggregate principal amount of Tranche B Loans outstanding from any Bank
shall at no time exceed (after giving effect to the use of the proceeds of any
Tranche B Loan then being made) an amount equal to (i) the Tranche B Loan
Commitment of such Bank at such time less (ii) the sum of (x) an amount equal to
the Face Amount of all outstanding Tranche B Commercial Paper multiplied by such
Bank's Tranche B Participation Percentage and (y) an amount equal to the
principal amount of all Unpaid Drawings in respect of Tranche B Commercial Paper
multiplied by such Bank's Tranche B Participation Percentage. More than one
Borrowing may occur on the same date.
(c) Tranche A Loans and Tranche B Loans shall be allocated first to the
Loan Portion Commitment and, only after the Loan Portion Commitment is fully
utilized, to the Unutilized L/C Commitment. Prepayments of the Tranche A Loans
and the
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Tranche B Loans shall be applied first to the Unutilized L/C Loans and, only
after the Unutilized L/C Loans have been paid in full, to the Loan Portion
Loans.
(d) Anything in this Section 2.01 or in Sections 2.13, 2.14 and 3.03 to the
contrary notwithstanding, the sum of (i) the aggregate unpaid principal amount
of all Loans outstanding, (ii) the aggregate Face Amount of all Commercial Paper
outstanding and (iii) the aggregate principal amount of all Unpaid Drawings, at
any one time outstanding shall not exceed the Total Commitment at such time.
2.02 Minimum Amount of Each Borrowing; Number of Interest Periods. The
aggregate principal amount of each Borrowing of any Tranche of Syndicated Loans
hereunder shall be not less than $10,000,000 or a larger whole multiple of
$1,000,000 for each Base Rate Loan and each Eurodollar Rate Loan, except as
required by Section 2.10(b) or 2.14; provided that, there may be no more than
fifteen (15) different Interest Periods for all Loans outstanding at the same
time.
2.03 Notice of Borrowing. (a) Whenever either Borrower desires to make a
Borrowing hereunder, it shall give the Administrative Agent notice thereof at
its Notice Office by 12:00 Noon (New York time) on the date three Business Days'
prior to each Eurodollar Rate Loan and by 12:00 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 Syndicated Loans to be made pursuant to such Borrowing,
the date of such Borrowing (which shall be a Business Day), whether the
Syndicated Loans being made pursuant to such Borrowing shall constitute Tranche
A Loans or Tranche B Loans, whether the Syndicated Loans being made pursuant to
such Borrowing are to be maintained initially as Base Rate Loans or Eurodollar
Rate Loans and, if Eurodollar Rate Loans, the initial Interest Period to be
applicable thereto. The Administrative Agent shall promptly give each Bank which
is required to make Syndicated Loans of the Tranche specified in the respective
Notice of Borrowing 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.
(b) At any time from the date on which a Swingline Loan to a Borrower is
made until such Swingline Loan shall have been paid in full, the Swingline Bank
may, and such Borrower hereby irrevocably authorizes and empowers (which power
is coupled with an interest) the Swingline Bank to, deliver, on behalf of such
Borrower, to the Administrative Agent Notices of Borrowing of Tranche A Loans
and Tranche B Loans that are Base
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Rate Loans in an aggregate amount equal to the then unpaid principal amount of
such Swingline Loan. Such Borrowings shall be divided among Tranche A Loans and
Tranche B Loans on a pro rata basis according to the respective aggregate unused
amounts of the Tranche A Commitments and the Tranche B Commitments of all of the
Banks (it being understood and agreed that for purposes of such determination
(i) the Tranche A Commitments shall be deemed used in an aggregate amount equal
to the sum of the aggregate outstanding principal amount of all Tranche A Loans
plus the aggregate Face Amount of all outstanding Tranche A Commercial Paper
plus the aggregate principal amount of all Unpaid Drawings in respect of Tranche
A Commercial Paper and (ii) the Tranche B Commitments shall be deemed used in an
aggregate amount equal to the sum of the aggregate outstanding principal amount
of all Tranche B Loans plus the aggregate Face Amount of all outstanding Tranche
B Commercial Paper plus the aggregate principal amount of all Unpaid Drawings in
respect of Tranche B Commercial Paper). The proceeds of such Syndicated Loans
shall be applied solely to refinance such Swingline Loan. In the event that the
power of the Swingline Bank to give such Notice of Borrowing on behalf of such
Borrower is terminated for any reason whatsoever (including, without limitation,
a termination resulting from the occurrence of an event specified in Section
10.05), or the Swingline Bank is otherwise precluded for any reason whatsoever
from giving a notice of borrowing on behalf of such Borrower as provided in the
preceding sentence, each Bank shall, upon notice from the Swingline Bank,
promptly purchase from the Swingline Bank a participation in (or, if and to the
extent specified by the Swingline Bank, a direct interest in) such Swingline
Loan in the amount of the Base Rate Loan it would have been obligated to make
pursuant to such Notice of Borrowing. Anything in Sections 2.03(a) or 2.04
hereof to the contrary notwithstanding, each Bank shall, not later than 4:00
p.m. New York time on the Business Day on which such notice is given (if such
notice is given by 2:15 p.m. New York time) or 9:00 a.m. New York time on the
next succeeding Business Day (if such notice is given after 2:15 p.m. New York
time), make available the amount of the Base Rate Loan to be made by it (or the
amount of the participation or direct interest to be purchased by it, as the
case may be) to the Administrative Agent at the Payment Office and the amount so
received by the Administrative Agent shall be made available to the Swingline
Bank by depositing the same, in immediately available funds, in an account of
the Swingline Bank designated by the Swingline Bank. Promptly following its
receipt of any payment in respect of a Swingline Loan, the Swingline Bank shall
pay to each Bank that has acquired a participation in such Loan such Bank's
proportionate share of such payment.
Anything in this Agreement to the contrary notwithstanding (including,
without limitation, in Section 2.02 or 6), the obligation of each Bank to make
its Base Rate Loan (or
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purchase its participation or direct interest in the Swingline Loan, as the case
may be) pursuant to this Section 2.03(b) is unconditional under any and all
circumstances whatsoever and shall not be subject to set-off, counterclaim or
defense to payment that such Bank may have or have had against one or both of
the Borrowers, the Guarantor, the Administrative Agent, the Swingline Bank, the
Letter of Credit Issuer or any other Bank and, without limiting any of the
foregoing, shall be unconditional irrespective of (i) the occurrence of any
Default or Event of Default, (ii) the financial condition of either or both of
the Borrowers, any Subsidiary or Affiliate of the Borrowers, the Administrative
Agent, the Swingline Bank, the Letter of Credit Issuer or any other Bank or
(iii) the termination or cancellation of the Commitments. The Borrowers agree
that any Bank so purchasing a participation (or direct interest) in such
Swingline Loan may exercise all rights of set-off, bankers' lien, counterclaim
or similar rights with respect to such participation as fully as if such Bank
were a direct holder of a Swingline Loan in the amount of such participation.
If any Bank shall default in its obligation to make its Base Rate Loan to
refinance any Swingline Loan (or purchase its participation or direct interest
in such Swingline Loan, as the case may be) pursuant to the first paragraph of
this Section 2.03(b), then for so long as such default shall continue, the
Administrative Agent shall, at the request of the Swingline Bank, withhold from
any payments received by the Administrative Agent under this Agreement or any
Note for account of such Bank the amount so in default and the Administrative
Agent shall pay the same to the Swingline Bank up to the amount and in
satisfaction of such defaulted obligation, which amount the Swingline Bank will
apply to the repayment of the principal of such Swingline Loan (if such Bank
defaulted in its obligation to make its Base Rate Loan) or otherwise to the
purchase of the participation or direct interest to be purchased by such Bank.
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 Eurodollar Rate
Loans, each Bank with a Commitment of the respective Tranche 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 either Borrower under
Section 2.01, in Dollars and 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. 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
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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 acquiring overnight Federal funds and (ii) if recovered
from such Borrower, the then applicable rate for Base Rate Loans or Eurodollar
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) The obligation of each Borrower to pay the principal of,
and interest on, the Tranche A Loans and Tranche B Loans made by each Bank to
such Borrower shall be evidenced (i) if Tranche A Loans, by a promissory note
duly executed and delivered by such Borrower substantially in the form of
Exhibit B-1 with blanks appropriately completed in conformity herewith (each, a
"Tranche A Note" and, collectively, the "Tranche A Notes") and (ii) if Tranche B
Loans, by a promissory note duly executed and delivered by such Borrower
substantially in the form of Exhibit B-2 with blanks appropriately completed in
conformity herewith (each, a "Tranche B Note", collectively, the "Tranche B
Notes").
(b) The Tranche A Note issued to each Bank shall (i) be payable to the
order of such Bank and be dated the date hereof, (ii) be in a stated principal
amount equal to the Tranche A Loan Commitment of such Bank and be payable in the
principal amount of Tranche A Loans evidenced thereby, (iii) mature, with
respect to each Loan evidenced thereby, on the Expiry Date, (iv) bear interest
as provided in the appropriate clause of Section 2.08 in respect of the Base
Rate Loans and Eurodollar Rate Loans, as the case may be, evidenced thereby and
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(v) be entitled to the benefits of this Agreement and the Guaranty.
(c) The Tranche B Note issued to each Bank shall (i) be payable to the
order of such Bank and be dated the date hereof, (ii) be in a stated principal
amount equal to the Tranche B Loan Commitment of such Bank and be payable in the
principal amount of the Tranche B Loans evidenced thereby, (iii) mature, with
respect to each Loan evidenced thereby, on the Expiry Date, (iv) bear interest
as provided in the appropriate clause of Section 2.08 in respect of the Base
Rate Loans and Eurodollar Rate Loans, as the case may be, evidenced thereby and
(v) be entitled to the benefits of this Agreement and the Guaranty.
(d) The obligation of each Borrower to pay the principal of, and interest
on, the Competitive Bid Loans made by any Bank to such Borrower shall be
evidenced by a promissory note duly executed and delivered by the relevant
Borrower substantially in the form of Exhibit B-3 with blanks appropriately
completed in conformity herewith (each, a "Competitive Bid Note" and,
collectively, the "Competitive Bid Notes"). The Competitive Bid Note issued to
any Bank shall (i) be payable to the order of such Bank and be dated the date
hereof, (ii) bear interest as provided in Section 2.13 and (iii) be entitled to
the benefits of this Agreement and the Guaranty.
(e) The obligation of each Borrower to pay the principal of, and interest
on, the Swingline Loans made by the Swingline Bank to such Borrower shall be
evidenced by a promissory note duly executed and delivered by the relevant
Borrower substantially in the form of Exhibit B-4 with blanks appropriately
completed in conformity herewith (each, a "Swingline Note" and, collectively,
the "Swingline Notes"). The Swingline Notes issued to the Swingline Bank shall
(i) be payable to the order of the Swingline Bank and be dated the date hereof,
(ii) bear interest as provided in Section 2.08 and (iii) be entitled to the
benefits of this Agreement and the Guaranty.
(f) Each Bank and the Swingline 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 Tranche A Note, Tranche B Note, Competitive Bid
Note or Swingline Note, as applicable, endorse on the reverse side thereof the
outstanding principal amount of Tranche A Loans, Tranche B Loans, Competitive
Bid Loans, or Swingline Loans, as the case may be, 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
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$5,000,000 of the outstanding principal amount of the Syndicated Loans made to
such Borrower pursuant to one or more Borrowings (so long as of the same
Tranche) of one or more Types of Syndicated Loans into a Borrowing (of the same
Tranche) of another Type of Syndicated Loan, provided that (i) except as
otherwise provided in Section 2.10(b), Eurodollar Rate Loans may be converted
into Syndicated Loans of another Type only on the last day of an Interest Period
applicable to the Loans being converted and no such partial conversion of
Eurodollar Rate Loans shall reduce the outstanding principal amount of
Eurodollar Rate Loans made pursuant to a single Borrowing to less than
$5,000,000, (ii) Base Rate Loans may only be converted into Eurodollar Rate
Loans if no Default or Event of Default is in existence on the date of the
conversion and (iii) 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 12:00 Noon (New York time) at
least three Business Days' prior notice for conversion to a Eurodollar Rate Loan
and at least one Business Day's prior notice for conversion to a Base Rate Loan
(each a "Notice of Conversion") specifying the Syndicated Loans to be so
converted and, if to be converted into Eurodollar Rate Loans, the Interest
Period to be initially applicable thereto. The Administrative Agent shall give
each Bank prompt notice of any such proposed conversion affecting any of its
Syndicated Loans.
2.07 Pro Rata Borrowings. All Borrowings of Tranche A Loans and Tranche B
Loans under this Agreement shall be incurred from the Banks pro rata on the
basis of their Tranche A Loan Commitments or Tranche B Loan Commitments, as the
case may be. 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 Eurodollar 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
each Interest Period applicable thereto, be the Quoted Rate for such Interest
Period plus the Applicable Margin.
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(c) Each Borrower agrees to pay interest in respect of the unpaid principal
amount of each Competitive Bid 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 (in the case of a Eurodollar Market
Loan) the Quoted Rate for such Interest Period plus the Competitive Bid Margin
and (in the case of an Absolute Rate Loan) the Competitive Bid Rate.
(d) Each Borrower agrees to pay interest in respect of the unpaid principal
amount of each Swingline 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 equal to the Base Rate.
(e) 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.
(f) 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 Eurodollar
Rate Loan or Eurodollar Market Loan, on the last day of each 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, (iii) in respect of each Absolute Rate Loan, on the
maturity thereof, (iv) in respect of each Swingline Loan, on the maturity
thereof and (iv) 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.
(g) On each Interest Determination Date, the Administrative Agent shall
determine the interest rate for the Eurodollar 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
Eurodollar Rate Loan (in the case of the initial Interest Period applicable
thereto) or on the third Business Day prior to the expiration of an Interest
Period applicable to such Eurodollar Rate Loan (in the case of any
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subsequent Interest Period), the relevant Borrower shall have the right to
elect, by giving the Administrative Agent notice thereof, the interest period
(each, together with each of the interest periods for Competitive Bid Loans as
provided in Section 2.13, an "Interest Period") applicable to such Eurodollar
Rate Loan, which Interest Period shall, at the option of such Borrower, be a
one, two, three, six, nine or twelve month period (subject to availability as
determined by 100% of the Banks of the applicable Tranche), provided that: (i)
all Eurodollar 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
initial Interest Period for any Eurodollar Rate Loan shall commence on the date
of Borrowing of such Loan (including the date of any conversion thereof into a
Loan of a different Type) and each Interest Period occurring thereafter in
respect of such Loan shall commence on the day on which the next preceding
Interest Period applicable thereto expires; (iii) if any Interest Period
relating to a Eurodollar 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 any Interest Period for a Eurodollar
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 Expiry Date. If upon the expiration of
any Interest Period applicable to a Eurodollar Rate Loan the relevant Borrower
has failed to elect a new Interest Period to be applicable to such Eurodollar
Rate Loan as provided above, such Borrower shall be deemed to have given notice
to elect to convert such Loan into a Base Rate Loan effective as of the
expiration date of such current Interest Period.
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 interbank Eurodollar
market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of
Quoted Rate; or
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(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar 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 Quoted Rate, and/or (y) other circumstances affecting
such Bank or the interbank Eurodollar market, or the position of such Bank
in such market; or
(iii) at any time, that the making or continuance of any Eurodollar
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 interbank Eurodollar
market;
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,
Eurodollar Rate Loans 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 Eurodollar 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
Eurodollar Rate Loan was made shall pay to such Bank, upon written demand
therefor, such additional amounts (in the
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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,
committed to such Borrower by such Bank shall, absent manifest error, be final
and 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 Eurodollar 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 Eurodollar 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 Eurodollar Rate Loan (but not a Eurodollar Market Loan)
is then outstanding, upon at least three Business Days' written notice to the
Administrative Agent, require the affected Bank to convert such Eurodollar Rate
Loan into a Base Rate Loan, 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, the Swingline Bank or the Letter of Credit Issuer (each, a
"Relevant Institution") 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 Relevant Institution or a holding company of which such
Relevant Institution is a Subsidiary based on (i) in the case of a Bank, the
existence of such Bank's Commitment hereunder, its participation in the Letter
of Credit, its participation in Swingline Loans or its obligations hereunder,
(ii) in the case of the Swingline Bank, the existence of the Swingline
Commitment hereunder or its obligations hereunder, or (iii) in the case of the
Letter of Credit Issuer, the maintenance of the Letter of Credit, then the
Borrowers shall pay to such Relevant Institution upon its written demand
therefor, such additional amounts as shall be required to compensate such
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- 30 -
Relevant Institution or such holding company for the increased cost to such
Relevant Institution as a result of such increase of capital; such obligations
of the Borrowers shall be joint and several. In determining such additional
amounts, each Relevant Institution will act reasonably and in good faith and
will use averaging and attribution methods which are reasonable, provided that
such Relevant Institution'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 Relevant Institution, 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).
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 Eurodollar 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, or conversion from or into, Eurodollar 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 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 5.01 or
5.02) or conversion of any of its Eurodollar Rate Loans occurs on a date which
is not the last day of an Interest Period with respect thereto; (iii) if any
prepayment of any of its Eurodollar 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 (which, for purposes of
this Section 2.12, shall include the Swingline Bank) agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.10(a)(ii) or
(iii), 2.10(c) or 5.04 with respect to such Bank, it will, if requested by
either 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
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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 5.04.
2.13 Competitive Bid Loans.
(a) Either Borrower may, as set forth in this Section 2.13, request the
Banks to make offers to make Eurodollar Market Loans or Absolute Rate Loans to
such Borrower in Dollars. The Banks may, but shall have no obligation to, make
such offers and such Borrower may, but shall have no obligation to, accept any
such offers in the manner set forth in this Section 2.13. Competitive Bid Loans
may be Eurodollar Market Loans or Absolute Rate Loans (each a "Type" of
Competitive Bid Loan), provided that (i) there may be no more than fifteen (15)
different Interest Periods for all Loans outstanding at the same time and (ii)
the aggregate unpaid principal amount of all Competitive Bid Loans, together
with the aggregate unpaid principal amount of all Tranche A Loans, Tranche B
Loans and Swingline Loans, the aggregate Face Amount of all Commercial Paper
outstanding and the aggregate principal amount of all Unpaid Drawings, at any
one time outstanding shall not exceed the Total Commitment at such time.
(b) When a Borrower wishes to request offers to make Competitive Bid Loans,
such Borrower shall give the Administrative Agent (which shall promptly notify
the Banks) notice in the form of Exhibit L hereto (a "Competitive Bid Quote
Request") so as to be received no later than 11:00 a.m. New York time on (x) the
fourth Business Day prior to the date of borrowing proposed therein in the case
of a Eurodollar Auction or (y) the Business Day preceding the date of borrowing
proposed therein, in the case of an Absolute Rate Auction, specifying:
(i) the name of such Borrower and the proposed date of such borrowing
(a "Competitive Bid Borrowing"), which shall be a Business Day;
(ii) the aggregate amount of such Competitive Bid Borrowing, which
shall be at least $5,000,000 (or an integral multiple of $1,000,000 in
excess thereof);
(iii) whether the Competitive Bid Quotes requested are to set forth a
Competitive Bid Margin or a Competitive Bid Rate; and
(iv) the duration of the Interest Period applicable thereto (each,
together with each of the interest periods for Syndicated Loans as provided
in Section 2.09, an
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"Interest Period") which, in the case of a Eurodollar Auction, shall be
one, two, three, six, nine or twelve months, as selected by such Borrower,
and, in case of an Absolute Rate Auction shall be such number of days not
less than seven nor more than 180 that are selected by the Borrower;
provided that (i) the Interest Period for any Eurodollar Market Loan shall
commence on the date of Borrowing of such Loan; (ii) if any Interest Period
relating to a Eurodollar Market 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; (iii) 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 any Interest
Period for a Eurodollar Market 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 shall extend
beyond the Expiry Date.
A Borrower may request offers to make Competitive Bid Loans for up to three
(3) different Interest Periods in a single Competitive Bid Quote Request;
provided that the request for each separate Interest Period shall be deemed to
be a separate Competitive Bid Quote Request for a separate Competitive Bid
Borrowing. Except as otherwise provided in the preceding sentence, no
Competitive Bid Quote Request shall be given within four Business Days of any
other Competitive Bid Quote Request.
(c) (i) Any Bank may, by notice to the Administrative Agent in the form of
Exhibit M hereto (a "Competitive Bid Quote"), submit an offer to make a
Competitive Bid Loan in response to any Competitive Bid Quote Request; provided
that, if the request under Section 2.13(b) specified more than one Interest
Period, such Bank may make a single submission containing a separate offer for
each such Interest Period and each such separate offer shall be deemed to be a
separate Competitive Bid Quote. Each Competitive Bid Quote must be submitted to
the Administrative Agent not later than (x) 2:00 p.m. New York time on the
fourth Business Day prior to the proposed date of borrowing, in the case of a
Eurodollar Auction or (y) 9:30 a.m. New York time on the proposed date of
borrowing, in the case of an Absolute Rate Auction; provided that any
Competitive Bid Quote submitted by ABN AMRO (or its Applicable Lending Office)
may be submitted, and may only be submitted, if ABN AMRO (or such Applicable
Lending Office) notifies the relevant Borrower of the terms of the offer
contained therein not later than (x) 1:45 p.m. New York time on the fourth
Business Day prior to the proposed date of borrowing, in the case of a
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Eurodollar Auction or (y) 9:15 a.m. New York time on the proposed date of
borrowing, in the case of an Absolute Rate Auction. Subject to Sections 2.10, 6
and 10, any Competitive Bid Quote so made shall be irrevocable except with the
written consent of the Administrative Agent given on the instructions of the
relevant Borrower.
(ii) Each Competitive Bid Quote shall specify:
(A) the name of the relevant Borrower, the proposed date of borrowing
and the Interest Period therefor;
(B) the principal amount of the Competitive Bid Loan for which each
such offer is being made, which principal amount (x) may be greater than or
less than the Commitment of the quoting Bank, (y) must be in an integral
multiple of $1,000,000, and (z) may not exceed the principal amount of the
Competitive Bid Borrowing for which offers were requested;
(C) in the case of a Eurodollar Auction, the margin above or below the
Quoted Rate (the "Competitive Bid Margin") offered for each such
Competitive Bid Loan, expressed as a percentage (rounded to the nearest
1/10,000th of 1%) to be added to or subtracted from the applicable Quoted
Rate;
(D) in the case of an Absolute Rate Auction, the rate of interest per
annum (rounded to the nearest 1/10,000th of 1%) (the "Competitive Bid
Rate") offered for each such Competitive Bid Loan; and
(E) the identity of the quoting Bank.
No Competitive Bid Quote shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set forth in the
applicable Competitive Bid Quote Request and, in particular, no Competitive Bid
Quote may be conditioned upon acceptance by the relevant Borrower of all (or
some specified minimum) of the principal amount of the Competitive Bid Loan for
which such Competitive Bid Quote is being made; provided that the submission of
any Bank containing more than one Competitive Bid Quote may be conditioned on
the relevant Borrower not accepting offers contained in such submission that
would result in such Bank making Competitive Bid Loans pursuant thereto in
excess of a specified aggregate amount (the "Competitive Bid Loan Limit").
(d) The Administrative Agent shall (x) in the case of an Absolute Rate
Auction, as promptly as practicable after the Competitive Bid Quote is submitted
(but in any event not later
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than 9:45 a.m. New York time) or (y) in the case of a Eurodollar Auction, by
4:00 p.m. New York time on the day a Competitive Bid Quote is submitted, notify
the relevant Borrower of the terms (i) of any Competitive Bid Quote submitted by
a Bank that is in accordance with Section 2.13(c) and (ii) of any Competitive
Bid Quote that amends, modifies or is otherwise inconsistent with a previous
Competitive Bid Quote submitted by such Bank with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall
be disregarded by the Administrative Agent unless such subsequent Competitive
Bid Quote is submitted solely to correct a manifest error in such former
Competitive Bid Quote. The Administrative Agent's notice to the relevant
Borrower shall specify (A) the aggregate principal amount of the Competitive Bid
Borrowing for which offers have been received and (B) the respective principal
amounts and Competitive Bid Margins or Competitive Bid Rates, as the case may
be, so offered by each Bank (identifying the Bank that made each Competitive Bid
Quote).
(e) Not later than (x) 11:00 a.m. New York time on the third Business Day
prior to the proposed date of borrowing, in the case of a Eurodollar Auction or
(y) 11:00 a.m. New York time on the proposed date of borrowing, in the case of
an Absolute Rate Auction, the relevant Borrower shall notify the Administrative
Agent of its acceptance or nonacceptance of the offers so notified to such
Borrower pursuant to Section 2.13(d) (which notice shall specify the aggregate
principal amount of offers from each Bank for each Interest Period that are
accepted; and the failure of the relevant Borrower to give such notice by such
time shall constitute non-acceptance) and the Administrative Agent shall
promptly notify each affected Bank of the acceptance or non-acceptance of its
offers. The notice by the Administrative Agent shall also specify the aggregate
principal amount of offers for each Interest Period that were accepted. The
relevant Borrower may accept any Competitive Bid Quote in whole or in part
(provided that any Competitive Bid Quote accepted in part from any Bank shall be
in an integral multiple of $1,000,000); provided that:
(i) the aggregate principal amount of each Competitive Bid Borrowing
may not exceed the applicable amount set forth in the related Competitive
Bid Quote Request;
(ii) the aggregate principal amount of each Competitive Bid Borrowing
shall be at least $5,000,000 (or an integral multiple of $1,000,000 in
excess thereof);
(iii) acceptance of offers may, subject to clause (v) below, only be
made in ascending order of Competitive Bid Margins or Competitive Bid
Rates, as the case may be; provided that the relevant Borrower need not
accept
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the offer of any Bank if payment of the interest on the relevant
Competitive Bid Loan would subject such Borrower to the requirement of
paying any additional amounts under Section 5.04 or if such interest
payment would be subject to greater restrictions on deductibility for
income tax purposes than the restriction applicable to interest payments
made to other Banks whose offers are accepted;
(iv) the relevant Borrower may not accept any offer where the
Administrative Agent has advised such Borrower that such offer fails to
comply with Section 2.13(c)(ii) or otherwise fails to comply with the
requirements of this Agreement (including, without limitation, Section
2.13(a)); and
(v) the aggregate principal amount of each Competitive Bid Borrowing
from any Bank may not exceed any applicable Competitive Bid Loan Limit of
such Bank.
If offers are made by two or more Banks with the same Competitive Bid Margins or
Competitive Bid Rates, as the case may be, for a greater aggregate principal
amount than the amount in respect of which offers are accepted for the related
Interest Period, the principal amount of Competitive Bid Loans in respect of
which such offers are accepted shall be allocated by the relevant Borrower among
such Banks as nearly as possible (in an integral multiple of $1,000,000) in
proportion to the aggregate principal amount of such offers. Determinations by
the relevant Borrower of the amounts of Competitive Bid Loans shall be
conclusive in the absence of manifest error.
(f) Any Bank whose offer to make any Competitive Bid Loan has been accepted
in accordance with the terms and conditions of this Section 2.13 shall, not
later than (x) with respect to Absolute Rate Loans 2:00 p.m. New York time on
the date specified for the making of such Loan and (y) with respect to
Eurodollar Market Loans 12:00 p.m. New York time on the date specified for the
making of such Loan, make the amount of such Loan available to the
Administrative Agent at the Administrative Agent's Account in immediately
available funds. The amount so received by the Administrative Agent shall,
subject to the terms and conditions of this Agreement, promptly be made
available to the relevant Borrower on such date by depositing the same, in
immediately available funds, in an account of the relevant Borrower designated
thereby.
(g) The amount of any Competitive Bid Loan made by any Bank shall not
constitute a utilization of such Bank's Commitment.
2.14 Swingline Loans.
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(a) Subject to and upon the terms and conditions set forth herein, the
Swingline Bank hereby agrees to make loans ("Swingline Loans") to the Borrowers
in Dollars during the period from and including the date hereof to but not
including the Expiry Date in an aggregate principal amount at any one time
outstanding up to but not exceeding the amount of the Swingline Commitment;
provided that the aggregate unpaid principal amount of all Swingline Loans,
together with the aggregate unpaid principal amount of all Tranche A Loans,
Tranche B Loans and Competitive Bid Loans, the aggregate Face Amount of all
Commercial Paper and the aggregate principal amount of all Unpaid Drawings at
any one time outstanding shall not exceed the Total Commitment at such time.
Subject to the terms of this Agreement, the Borrowers may borrow, repay and
reborrow the amount of the Swingline Commitment; provided that Swingline Loans
may not be borrowed on more than two consecutive Business Days.
(b) Whenever either Borrower desires to make a Swingline Borrowing
hereunder, it shall give the Administrative Agent notice thereof at its Notice
Office by 2:30 P.M. (New York time) on the date of such Swingline Borrowing.
Each such notice (each a "Notice of Swingline Borrowing") shall be in the form
of Exhibit A-2, appropriately completed to specify the principal amount of the
Swingline Loan to be made pursuant to such Swingline Borrowing (which shall be
at least $1,000,000 and in larger multiples of $1,000,000) and the date of such
Borrowing (which shall be a Business Day). The Administrative Agent shall
promptly give the Swingline Bank and each Bank notice of such proposed Swingline
Borrowing and of the other matters required by the immediately preceding
sentence to be specified in the Notice of Swingline Borrowing. No later than the
close of business (New York time) on the date specified in each Notice of
Swingline Borrowing, the Swingline Bank will make available, through the
Swingline Bank's Applicable Lending Office, the amount of such Swingline
Borrowing requested to be made on such date by either Borrower under this
Section 2.14, in Dollars and 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 amount so made available by
the Swingline Bank.
(c) Each Borrower hereby agrees to pay (or cause to be paid) to the
Administrative Agent for account of the Swingline Bank the principal amount of
each Swingline Loan at or prior to, and each Swingline Loan shall mature at, the
close of business New York time on the fifth Business Day following the date on
which such Swingline Loan was made. In addition, the relevant Borrower may at
any time, with notice to the Administrative Agent (which shall notify the
Swingline Bank and the Banks thereof promptly) prepay the Swingline Loans owing
by it without premium or penalty.
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(d) Anything in this Section 2.14 to the contrary notwithstanding, the
Swingline Bank's obligation to make Swingline Loans may be terminated by the
Swingline Bank if ABN AMRO ceases to act as the Administrative Agent hereunder
and may be terminated under Section 10 hereof.
Section 3. Commercial Paper Operations.
3.01 Issuance of Initial Letter of Credit; Substitute Letters of Credit.
(a) The Letter of Credit Issuer hereby agrees, on the terms and subject to the
conditions hereinafter set forth, to issue to the Depositary and for the account
of the Borrowers at the request of the Borrowers, its irrevocable letter of
credit, in substantially the form of Exhibit F hereto, for the benefit of the
holders of Commercial Paper, completed in accordance with such form and the
terms of this Section 3.01(a). When the Borrowers desire that the Letter of
Credit be issued for their account, they shall give the Administrative Agent and
the Letter of Credit Issuer at least one Business Day's written notice thereof.
The notice shall be in the form of Exhibit J hereto (the "Letter of Credit
Request"). The Administrative Agent shall promptly transmit copies of the Letter
of Credit Request to each Bank. The Letter of Credit shall be issued by the
Letter of Credit Issuer in an amount (the "Stated Amount") selected by the
Borrowers not to exceed the Total Letter of Credit Commitment and for a term
expiring on the Expiry Date.
(b) On or prior to the date hereof each Bank other than the Letter of
Credit Issuer (each such Bank a "Participant" with respect to the Letter of
Credit) shall execute, with the Letter of Credit Issuer, the Participation
Agreement in substantially the form of Exhibit E hereto, with appropriate
insertions (such agreement as modified, supplemented or amended from time to
time, the "Participation Agreement"), (i) pursuant to which each Participant
will acquire a risk participation in the Letter of Credit based on its Tranche A
Participation Percentage and/or Tranche B Participation Percentage, as the case
may be, and (ii) as a result of which the Letter of Credit Issuer will retain
liability (relative to the other Banks) with respect to the Letter of Credit
based on its Tranche A Participation Percentage and/or Tranche B Participation
Percentage, in each case if any.
(c) Following the appointment and qualification of any successor Depositary
and the return of the Letter of Credit being replaced, the Letter of Credit
Issuer shall deliver to such successor Depositary a substitute letter of credit
in the form of Exhibit F hereto, dated the date of issuance thereof, having
terms identical to the Letter of Credit theretofore outstanding but in favor of
such successor Depositary.
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(d) If (i) the Expiry Date is extended pursuant to Section 4.03, or (ii)
the Borrowers shall partially reduce the Total Commitment pursuant to Section
4.02 to an amount less than the then Stated Amount of the Letter of Credit, the
Administrative Agent shall so notify the Depositary and the Letter of Credit
Issuer and the Letter of Credit Issuer shall deliver to the Depositary a
substitute Letter of Credit in the form of Exhibit F hereto, dated the date of
issuance thereof, and, in the case of (i) above, expiring on the new Expiry
Date, and in the case of (ii) above, in a Stated Amount equal to the amount to
which the Total Commitment shall have been reduced, but, in either case,
otherwise having terms identical to the Letter of Credit being replaced, in
exchange for delivery by the Depositary of the Letter of Credit currently held
by it. In the case of (i) above, such exchange shall take place at least three
Business Days before the next succeeding June 30 and in the case of (ii) above,
such exchange shall take place promptly after the effective date of any such
reduction.
(e) In the event that (i) an injunction suspending the issuance of the
Commercial Paper by either Borrower shall have been issued or proceedings
therefor shall have been initiated by the SEC, or (ii) either Borrower, the
Letter of Credit Issuer or any other Person shall have been found in a judicial
or administrative proceeding to have violated the Securities Act of 1933, as
amended, in connection with the issuance of Commercial Paper or the Letter of
Credit, or (iii) any of them shall have offered, issued or sold to or solicited
any offer to acquire any Commercial Paper or any part thereof or any similar
security from anyone so as to bring the issuance and sale of Commercial Paper or
the Letter of Credit within the registration and prospectus delivery
requirements of Section 5 of the Securities Act of 1933, as amended, or (iv) any
restriction under Federal or state law or regulation would prevent the Letter of
Credit Issuer from maintaining the Letter of Credit for account of either
Borrower, then, in any of such events, such Borrower shall not thereafter issue
or sell any Commercial Paper without the written approval of the Letter of
Credit Issuer and the Administrative Agent and (in the case of the preceding
clause (iv)) the Required Banks. The Letter of Credit Issuer may cancel the
Letter of Credit (effective on the first day thereafter on which there is no
longer any Commercial Paper outstanding) if neither Borrower may issue
Commercial Paper by giving the Borrowers, the Administrative Agent and the
Depositary written notice thereof. The Letter of Credit Issuer and the Borrowers
each agree to notify each other upon first learning of the occurrence of any
event described in clauses (i) through (iv) above.
(f) If upon the occurrence and during the continuance of an Event of
Default the Administrative Agent shall, pursuant to Section 10, declare the
Total Commitment to be terminated,
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then (x) the Letter of Credit Issuer shall have the right to require the
Depositary to surrender the Letter of Credit to it on the earliest to occur of
the following dates, as applicable: (1) the date of such declaration if no
Commercial Paper shall then be outstanding or (2) if Commercial Paper shall then
be outstanding, on the Business Day next succeeding the date on which there is
no longer outstanding any Commercial Paper and (y) as set forth in Section 3 of
the Depositary Agreement, no additional Commercial Paper shall be issued.
(g) The Borrowers jointly shall have the right to cause the termination and
cancellation of the Letter of Credit by delivery to the Depositary, the
Administrative Agent and each of the Banks a notice to such effect and
specifying therein the date of such cancellation (the "Letter of Credit
Termination Date"), which date shall not occur on any date on which there is
outstanding any Commercial Paper.
(h) The Letter of Credit Issuer shall have the right to require the
Depositary to surrender the Letter of Credit to it on the Expiry Date.
(i) Promptly upon the occurrence of any Unpaid Drawing under the Letter of
Credit, the Letter of Credit Issuer shall notify the Administrative Agent
thereof.
(j) At any time after the Letter of Credit has been terminated and canceled
pursuant to Section 3.01(g), the Letter of Credit Issuer hereby agrees, on the
terms and subject to the conditions set forth in Section 3.01, to issue to the
Depositary for account of the Borrowers at the request of the Borrowers a Letter
of Credit in an amount not to exceed the Total Letter of Credit Commitment, as
the same may be increased or decreased pursuant to Section 3.01(l), provided
that such request must be in writing and be submitted to the Letter of Credit
Issuer and the Administrative Agent (who shall forward such request upon receipt
to each of the Banks) at least three Business Days prior to the effect thereof,
accompanied by a certificate of a senior officer of the Guarantor stating that
no Default or Event of Default has occurred and is continuing. The provisions of
Section 3.01(a) shall apply to the issuance of such Letter of Credit.
(k) At any time that a Letter of Credit is outstanding, the Borrowers may
effect a reduction of or an increase in, the Stated Amount of the Letter of
Credit in an amount up to but not exceeding the aggregate amount of the Total
Letter of Credit Commitment, in the case of an increase, or an amount not less
than the aggregate Face Amount of Commercial Paper outstanding, in the case of a
reduction. The Borrowers shall give notice to the Letter of Credit Issuer and
the
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Administrative Agent (who shall forward a copy of such notice to each of the
Banks) at least three Business Days prior to the effect thereof, and must 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.
(l) The Borrowers may effect a reduction of the Total Letter of Credit
Commitment to an amount not less than the greater of (x) the Stated Amount of
the Letter of Credit and (y) the sum of the aggregate Face Amount of Commercial
Paper outstanding and the aggregate amount of all Unutilized L/C Loans
outstanding and the aggregate principal amount of all Unpaid Drawings. The
Borrowers may effect an increase in the Total Letter of Credit Commitment up to
an amount not in excess of the Total Commitment less the aggregate amount of
Loan Portion Loans and Swingline Loans outstanding; provided that any such
increase requires the consent of all of the Banks. The Borrowers must submit a
request for such reduction of or increase in the Total Letter of Credit
Commitment to the Letter of Credit Issuer and the Administrative Agent (who
shall forward a copy of such notice to each of the Banks) at least three
Business Days prior to the effective date thereof, which request must 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.
3.02 Agreement to Repay Disbursements Under Letter of Credit. (a) Each
Borrower hereby agrees to reimburse the Letter of Credit Issuer in immediately
available funds by making payment to the Letter of Credit Issuer at its Payment
Office (or by a charge to a Commercial Paper Account of such Borrower as
provided in Section 3.03(c)), for each payment made under the Letter of Credit
honoring any demand for payment (each such payment being referred to as a
"Drawing") made by the Depositary thereunder (all such amounts so paid until
reimbursed, "Unpaid Drawings") with respect to Commercial Paper issued by such
Borrower, such reimbursement to be due on the date of the Drawing, with interest
on the amount so paid from and including the date paid, to the extent not
reimbursed when due, to but not including the date of reimbursement therefor.
Interest on the Unpaid Drawings shall be payable at a rate per annum equal to 2%
per annum in excess of the Base Rate until reimbursed.
(b) Promptly following the Letter of Credit Issuer's receipt of
reimbursement with respect to Unpaid Drawings the Letter of Credit Issuer shall
inform the Administrative Agent thereof.
(c) A Borrower's obligation to reimburse the Letter of Credit Issuer under
this Section 3.02 with respect to Unpaid Drawings shall be absolute,
unconditional and irrevocable, and such Unpaid Drawings shall be paid strictly
in accordance with
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the terms of this Agreement, under any and all circumstances and irrespective of
any set-off, counterclaim or defense to payment which such Borrower may have or
have had against the Letter of Credit Issuer, any Participant or the Depositary
or any of their affiliates, including (without limitation) any defense based on
the failure of such payment to conform to the terms of the Letter of Credit or
any failure of such Borrower to receive all or any part of the proceeds of the
sale of Commercial Paper with respect to which demand for payment under the
Letter of Credit was made by the Depositary or any nonapplication or
misapplication by the Depositary of the proceeds of such demand for payment;
provided, that such payment shall not constitute a waiver of any claims or
rights which such Borrower may have.
(d) Notwithstanding anything to the contrary contained in this Agreement or
any other Credit Document, but without limiting any of the Borrowers'
obligations pursuant to any other Section of this Agreement or any other Credit
Document, on any day on which both (i) Commercial Paper issued by a Borrower
matures (such Commercial Paper, "Maturing Commercial Paper") and (ii) new
Commercial Paper will be issued by such Borrower (such Commercial Paper, "New
Commercial Paper"), such Borrower will pay to the Letter of Credit Issuer an
amount equal to (x) the Face Amount of such Maturing Commercial Paper less (y)
the proceeds from the sale of such New Commercial Paper (net of the discount
applicable thereto and all fees to be paid from such proceeds to the dealer or
dealers in respect thereof) expected to be deposited on such date in the
Commercial Paper Accounts of such Borrower in accordance with Section 3.03(c) of
this Agreement and Section 1 of the Depositary Agreement, such payment to be
made prior to the issuance of such New Commercial Paper and to be specifically
designated for the purpose of reimbursing, in part, the Letter of Credit Issuer
for the Unpaid Drawing that will result on such date as a result of the Drawing
the proceeds of which will be deposited into an L/C Subaccount of such Borrower
for the purpose of paying such Maturing Commercial Paper.
3.03 Issuance of Commercial Paper. (a) The Borrowers agree that they will
issue Commercial Paper only in the manner, at the times and in the amounts
provided for herein and in the Depositary Agreement. If such Commercial Paper is
issued in the form of promissory notes, each note constituting Commercial Paper
shall: (1) be substantially in the form of Exhibit G hereto and completed in
accordance with the Depositary Agreement, (2) be dated the date of issuance
thereof, (3) be made payable to the order of a named payee or bearer, (4) have a
stated maturity date which shall not be later than the earlier to occur of (A)
the 270th day next succeeding the date of its issuance or (B) the 16th day next
preceding the Expiry Date, and (5) be issued on a discount basis in a Face
Amount of at least $100,000. If such Commercial Paper is issued in book-entry
form, issuance
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instructions are to be given to the Depositary to be given to DTC in accordance
with the DTC Documents and must include the following information with respect
to all such Commercial Paper: (1) the date of issuance thereof, (2) the maturity
date (which shall not be later than the earlier to occur of (A) the 270th day
next succeeding the date of its issuance or (B) the 16th day next preceding the
Expiry Date) and (3) the Face Amount (which shall be an amount which is at least
$100,000), the discount rate and amount of discount from the Face Amount.
Subject to Section 3.03(b), any Commercial Paper so issued on or after the date
hereof shall be Tranche A Commercial Paper for all purposes of this Agreement
and the other Credit Documents unless at the time of the issuance thereof the
Borrowers shall designate such Commercial Paper as Tranche B Commercial Paper in
a writing delivered to the Depositary and the Administrative Agent.
(b) The Face Amount of Tranche A Commercial Paper at any time outstanding
(after giving effect to all payments of maturing Tranche A Commercial Paper then
being made, to the use of the proceeds of any Commercial Paper then being issued
and to any payments made pursuant to Section 3.02(d) of this Agreement and the
sixth paragraph of Section 3(a) of the Depositary Agreement) shall not exceed an
amount equal to the lesser of (A) (i) the Total Tranche A Loan Commitment less
(ii) the sum of (x) the aggregate unpaid principal amount of all Tranche A Loans
and (y) an amount equal to the aggregate principal amount of all Unpaid Drawings
in respect of Tranche A Commercial Paper or (B) (i) the Stated Amount of the
Letter of Credit less (ii) the sum of (x) the aggregate unpaid principal amount
of all Unutilized L/C Loans, (y) the Face Amount of Tranche B Commercial Paper
outstanding and (z) the aggregate unpaid principal amount of all Unpaid Drawings
in respect of Commercial Paper. The Face Amount of Tranche B Commercial Paper at
any time outstanding (after giving effect to all payments of maturing Tranche B
Commercial Paper then being made, to the use of the proceeds of any Commercial
Paper then being issued and to any payments made pursuant to Section 3.02(d) of
this Agreement and the sixth paragraph of Section 3(a) of the Depositary
Agreement) shall not exceed an amount equal to the lesser of (A) (i) the
aggregate amount of the Total Tranche B Loan Commitment less (ii) the sum of (x)
the aggregate unpaid principal amount of all Tranche B Loans and (y) an amount
equal to the aggregate principal amount of all Unpaid Drawings in respect of
Tranche B Commercial Paper or (B) (i) the Stated Amount of the Letter of Credit
less (ii) the sum of (x) the aggregate unpaid principal amount of Unutilized L/C
Loans, (y) the Face Amount of Tranche A Commercial Paper outstanding, and (z)
all Unpaid Drawings in respect of Commercial Paper. The Borrowers will not issue
any Commercial Paper at any time when the conditions set forth in Section 6 are
not satisfied. If the Administrative Agent has actual knowledge
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that any conditions precedent to the issuance of Commercial Paper are not
satisfied, it shall so notify the Depositary.
(c) All proceeds from the sale of Commercial Paper by a Borrower shall be
initially deposited by the Depositary in the Commercial Paper Account of such
Borrower for Tranche A Commercial Paper Notes (in the case of Commercial Paper
constituting Tranche A Commercial Paper) or the Commercial Paper Account of such
Borrower for Tranche B Commercial Paper Notes (in the case of Commercial Paper
constituting Tranche B Commercial Paper). On each day on which funds are so
deposited in such Commercial Paper Account, the Depositary is authorized by the
relevant Borrower (which authorization is irrevocable) to promptly transfer to
the Letter of Credit Issuer the balance of such Commercial Paper Account to be
applied by the Letter of Credit Issuer in the following order: (i) to reimburse
the Letter of Credit Issuer for all its Unpaid Drawings, (ii) to pay accrued
interest thereon as provided in Section 3.02(a), and (iii) to satisfy all other
obligations of the relevant Borrower to the Letter of Credit Issuer then due and
payable hereunder. Any balance remaining after application pursuant to the
preceding sentence shall be transferred to the Administrative Agent at an
account opened in the name of the Borrowers in the United States and applied to
any other outstanding Obligations then due and payable. Any balance remaining
after application pursuant to the two preceding sentences shall be released to
the Borrowers as the Borrowers shall direct.
(d) The Letter of Credit Issuer shall utilize funds removed from a
Commercial Paper Account of a Borrower and paid to it pursuant to Section 4 of
the Depositary Agreement to the extent thereof, to reimburse the Letter of
Credit Issuer for Unpaid Drawings of such Borrower, with accrued interest
thereon as provided in Section 3.02(a). Any funds paid to the Letter of Credit
Issuer as described in the preceding sentence and remaining after the
application described in the preceding sentence shall be transferred to the
Administrative Agent and applied to any other outstanding Obligations then due
and payable. Any balance remaining after application pursuant to the two
preceding sentences shall be released to the Borrowers as the Borrowers shall
direct.
(e) [Intentionally Omitted]
(f) Any Commercial Paper issued in accordance with the Credit Documents
prior to the earliest of (x) the Expiry Date; (y) the time of receipt by the
Depositary of the request from the Letter of Credit Issuer to surrender the
Letter of Credit pursuant to Section 3.01(f) of this Agreement; or (z) the time
of receipt by the Depositary of the notice from the Borrowers of the
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Letter of Credit Termination Date, shall be supported by the Letter of Credit.
Section 4. Facility Fee; Fees; Reductions of Commitments; Expiry Date;
Increase of Commitments.
4.01 Fees. (a) The Borrowers jointly and severally agree to pay to the
Administrative Agent for distribution to the Banks, a facility fee (the
"Facility Fee") for the period from the date hereof until the Expiry 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
Expiry 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 for distribution to the Banks a Letter of Credit fee (the "Letter of
Credit Fee") for the period from the date hereof until the Expiry Date (or such
earlier date as the Total Commitment shall have been terminated) computed at the
Applicable Letter of Credit Fee Rate on the Total Letter of Credit Commitment as
in effect from time to time.
Accrued Letter of Credit 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 Expiry Date or upon such earlier date as the Total Commitment shall be
terminated.
(c) The Borrowers shall pay to the Administrative Agent for distribution to
each Bank a Letter of Credit usage fee (the "Letter of Credit Usage Fee") for
the period from the date the Letter of Credit is issued until the Expiry Date
(or such earlier date as the Letter of Credit shall have been terminated)
computed daily at the Applicable Letter of Credit Usage Fee Rate multiplied by
the daily average amount of the Outstanding Commercial Paper Participation of
such Bank.
The daily average Letter of Credit Usage 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 Expiry Date or upon such earlier date as the Total
Commitment shall be terminated.
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(d) 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.
(e) The Borrowers shall pay to the Letter of Credit Issuer, for its own
account, such fees as may be agreed to from time to time between the Borrowers
and the Letter of Credit Issuer.
(f) The Borrowers shall pay to the Letter of Credit Issuer, for its own
account, a fee of $2,000 with respect to each transfer of the Letter of Credit
to a new beneficiary.
4.02 Termination of Commitments. (a) On the Expiry Date, each of the Total
Commitment (and the Commitment of each Bank) and the Swingline Commitment shall
terminate in its entirety.
(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 (i) any such reduction or termination must be applied
to reduce the Total Tranche A Loan Commitment and the Total Tranche B Loan
Commitment on a pro rata basis, (ii) no such reduction of the Total Tranche A
Loan Commitment may exceed the Unutilized Total Tranche A Commitment at such
time, (iii) no such reduction of the Total Tranche B Loan Commitment may exceed
the Unutilized Total Tranche B Commitment at such time, (iv) no such reduction
of the Total Commitment shall reduce the Total Commitment to less than the sum
of the Total Letter of Credit Commitment plus the aggregate amount of Loan
Portion Loans and Swingline Loans outstanding and (v) any such reduction of the
Total Tranche A Loan Commitment or the Total Tranche B Loan Commitment shall
apply proportionately to reduce the Tranche A Loan Commitment or Tranche B Loan
Commitment, as the case may be, of each Bank.
4.03 Expiry Date. The "Expiry Date" of the Total Commitment shall be June
30, 2001 (the "Existing Final Maturity") provided, however, that not more than
90 days before or less than 75 days prior to any June 30 (the "Extension Date")
after June 30, 1996, the Guarantor may make a written request to the
Administrative Agent, who shall forward a copy of each such request to the
Letter of Credit Issuer, to the Swingline Bank and to each of the Banks, that
the Expiry Date be extended to any June 30 of any year after 2001 up to five
years after the Extension Date (the "Requested New Final Maturity"). Such
request shall be accompanied by a certificate of a senior officer
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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
shall have the right not to agree to any such requested extension (each, a
"Non-extending Bank"), provided that (i) subject to the following clause (ii),
notice of each Bank's decision shall be provided to the Guarantor no later than
45 days prior to the relevant Extension Date and (ii) each Bank that fails so to
provide notice of its decision shall be deemed to be a Non-extending Bank.
The Guarantor shall have the right, on or before the relevant Extension
Date, so long as no Default shall have occurred and be continuing, to replace
any Non-extending Bank with one or more new banks or with an existing Bank (each
an "Additional Commitment Bank"), subject in the case of replacement by new
banks, to the consent of the Letter of Credit Issuer, the Swingline Bank and the
Managing Banks (such consents not to be unreasonably withheld or delayed), each
of which Additional Commitment Banks shall have entered into an agreement in
form and substance satisfactory to the Borrowers, the Letter of Credit Issuer,
the Swingline Bank and the Administrative Agent pursuant to which such
Additional Commitment Bank shall, effective as of the relevant Extension Date,
have undertaken a Commitment (which, if such Additional Commitment Bank is
already a Bank, shall be in addition to such Banks existing Commitment). In that
connection, the Borrowers shall arrange for the Additional Commitment Bank(s) to
purchase from, and to pay to, each Non-extending Bank the principal amount of
all outstanding Loans held by such Non-extending Bank at par, together with
interest thereon accrued to the repayment date and all other amounts payable
hereunder to such Non-extending Bank (including any fees accrued hereunder and
any amounts that would be payable under Section 2.11 as if all of such
Non-extending Bank's Loans were being prepaid on such repayment date).
If the Bank acting as Swingline Bank hereunder is a Non-extending Bank, the
Guarantor shall have the right, on or before the relevant Extension Date, so
long as no Default shall have occurred and be continuing, to replace the
Swingline Bank with one (and only one) new bank or with an existing Bank (the
"Replacement Swingline Bank", subject in the case of replacement by new banks,
to the consent of the Letter of Credit Issuer and the Managing Banks (such
consents not to be unreasonably withheld or delayed), which Replacement
Swingline Bank shall have entered into an agreement in form and substance
satisfactory to the
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Borrowers, the Letter of Credit Issuer and the Administrative Agent pursuant to
which such Replacement Swingline Bank shall, effective as of the relevant
Extension Date, undertaken the Swingline Commitment. In that connection, the
Borrowers shall arrange for the Replacement Swingline Bank to purchase from, and
to pay to, the then-current Swingline Bank the principal amount of all
outstanding Swingline Loans held by the Swingline Bank at par, together with
interest thereon accrued to the repayment date and all other amounts payable
hereunder to such Swingline Bank.
If prior to the relevant Extension Date, all of the Banks (including
without limitation any new bank that replaces a Non-extending Bank) and the
Swingline Bank (including without limitation any new bank that replaces the
Swingline Bank) agree to any such requested extension, the Existing Final
Maturity shall, effective as of the Extension Date, be extended to the Requested
New Final Maturity; provided that (a) no Default or Event of Default shall have
occurred and be continuing and (b) the representations and warranties set forth
in Section 7 shall be true and correct.
4.04 Increase of Commitments. The Guarantor shall have the right, at any
time prior to the Expiry Date, as the same may be extended in accordance with
Section 4.03, to effect an increase in the aggregate amount of the Total
Commitment to an amount not to exceed $500,000,000; provided that (i) no Default
or Event of Default has occurred and is continuing; (ii) one or more of the
existing Banks agree, but are not required to agree, to increase their
respective Commitments hereunder (and the Letter of Credit Issuer and the
Swingline Bank shall have consented to such increase) and/or one or more new
banks, satisfactory to the Letter of Credit Issuer and the Administrative Agent,
agree to provide Commitments hereunder. Such increase may take effect so long as
no Tranche A Loans, Tranche B Loans or Swingline Loans are outstanding and no
reductions of the Commitments shall have occurred within the preceding 12 month
period.
Section 5. Prepayments; Payments.
5.01 Voluntary Prepayments. (a) Subject to Section 2.01(c), each Borrower
shall have the right to prepay the Tranche A Loan and Tranche B 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
Eurodollar 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, whether
the Loans to be prepaid are Tranche A Loans or Tranche B Loans, the Types of
Loans to be prepaid, and, in the case of Eurodollar Rate Loans,
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the specific Borrowing or Borrowings pursuant to which made, which notice the
Administrative Agent shall promptly transmit to each of the Banks with
Commitments under the respective Tranche; (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 Eurodollar 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 Eurodollar Rate Loans; (iii)
prepayments of Eurodollar Rate Loans made pursuant to this Section 5.01 may only
be made on the last day of an Interest Period applicable thereto unless prior
thereto 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.
(b) Each Borrower shall have the right to prepay the Swingline Loans,
without premium or penalty, in whole or in part from time to time, provided that
such Borrower shall give the Administrative Agent at its Notice Office prior
notice of its intent to prepay such Swingline Loans together with notice of the
amount of such prepayment (which shall be in an aggregate principal amount of
$1,000,000 or a larger whole multiple of $1,000,000).
5.02 Mandatory Prepayments. (a) On any day on which the aggregate
outstanding principal amount of the Tranche A Loans (after giving effect to all
other repayments of any of such Loans on such date) plus the outstanding Face
Amount of Tranche A Commercial Paper plus Unpaid Drawings in respect of Tranche
A Commercial Paper exceeds the Total Tranche A Loan Commitment as then in
effect, the relevant Borrowers shall prepay principal of the Tranche A Loans in
an amount equal to such excess.
(b) On any day on which the aggregate outstanding principal amount of the
Tranche B Loans (after giving effect to all other repayments of any of such
Loans on such date) plus the outstanding Face Amount of Tranche B Commercial
Paper plus Unpaid Drawings in respect of Tranche B Commercial Paper exceeds the
Total Tranche B Loan Commitment as then in effect, the relevant Borrowers shall
prepay principal of the Tranche B Loans in an amount equal to such excess.
(c) On any day on which the aggregate outstanding principal amount of the
Loans (after giving effect to all other repayments of any of such Loans on such
date) plus the outstanding Face Amount of Commercial Paper issued hereunder plus
Unpaid Drawings exceeds the Total Commitment as then in effect, the Borrowers
shall prepay principal of the Tranche A Loans, Tranche B Loans and/or Swingline
Loans in an amount equal to such excess.
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(d) With respect to each prepayment of Syndicated Loans required by this
Section 5.02, the Borrowers may, subject to Section 2.01(c), designate the Types
of Loans which are to be prepaid and, in the case of Eurodollar Rate Loans, the
specific Borrowing or Borrowings pursuant to which made, provided that: (i)
prepayments of Eurodollar Rate Loans made pursuant to this Section 5.02 may only
be made on the last day of an Interest Period applicable thereto unless all
Eurodollar Rate Loans of the respective Tranche with Interest Periods ending on
such date of required prepayment and all Base Rate Loans of the respective
Tranche have been paid in full; (ii) if any prepayment of Eurodollar Rate Loans
made pursuant to a single Borrowing shall reduce the outstanding Loans made
pursuant to such Borrowing to an amount less than $3,000,000, such outstanding
Loans shall immediately be converted into Base Rate Loans; and (iii) each
prepayment of any Loans made pursuant to a Borrowing shall be applied pro rata
among such Loans. In the absence of a designation by the Borrowers as described
in the preceding sentence, the Administrative Agent shall, subject to the above,
make such designation in its sole discretion.
5.03 Method and Place of Payment. Except as otherwise specifically provided
herein or in the Depositary Agreement, all payments under this Agreement or any
Note shall be made to the Administrative Agent for the account of the Bank or
Banks (which for purposes of this Section 5.03 shall include the Swingline Bank)
entitled thereto not later than 2:00 P.M. (New York 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 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.
5.04 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 (which for purposes of this Section 5.04(a) and
Section 5.04(b) below shall include the Swingline Bank) pursuant to the laws of
the jurisdiction (or any political subdivision or
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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 hereof 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 (i) United States withholding tax on all payments made
hereunder by OFI and (ii) United Kingdom withholding tax on all payments made
hereunder by OFL. On or prior to the date hereof, each Bank organized under the
laws of a jurisdiction outside the United States has provided OFI with the forms
prescribed by the Internal Revenue Service of the United States (currently Form
4224 or Form 1001) 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. Within thirty (30) days
after the date hereof, each Bank organized under the laws of a jurisdiction
outside the United Kingdom shall request, and shall provide to OFL as soon as
received, the notice issued by the Department of Inland Revenue of the United
Kingdom (currently Form 242/FD) certifying such Bank's exemption from United
Kingdom 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 on an updated basis from time to time if requested by
OFI in the case of United States forms and by OFL in the case of United Kingdom
forms. 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, (a) OFI 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, and (b) OFL shall withhold
taxes from
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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 Kingdom.
If any Bank organized under the laws of a jurisdiction outside the United States
fails to provide OFI, or if any Bank organized under the laws of a jurisdiction
outside of the United Kingdom fails to provide OFL, with the prescribed forms
referred to in the second, third and fourth sentences of this Section 5.04(b),
and notwithstanding Section 12.15 hereof, the Borrowers shall not be required to
compensate such Bank under Section 5.04(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 the certification set
forth in such prescribed forms as a result of a change in United States federal,
or United Kingdom, income tax law, regulation or interpretation occurring after
the date hereof, 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.
Section 6. Conditions Precedent. Each Credit Event of each Borrower is
subject (except and to the extent hereinafter indicated) to the satisfaction of
the following conditions with each Credit Event constituting a representation
and warranty by such Borrower that the conditions specified in Section 6.03
below are then satisfied:
6.01 Rating Letter. On or before the date of the initial issuance by such
Borrower of Commercial Paper, Moody's and S&P shall have given the Commercial
Paper to be issued by such Borrower its highest rating and the Administrative
Agent shall have received a copy of a letter (a "Rating Letter") from each of
Moody's and S&P to such effect and at the time of each issuance of Commercial
Paper to be issued by such Borrower, a Rating Letter from Moody's and S&P to
such effect shall be in effect and each shall have given such Commercial Paper
its highest rating.
6.02 Notes. On the date of the first Borrowing by such Borrower hereunder
there shall have been delivered to the Administrative Agent for the account of
each of the Banks the appropriate Note executed by such Borrower in the amount,
maturity and as otherwise provided herein. On the date of the first Swingline
Borrowing by such Borrower hereunder there shall have been delivered to the
Swingline Bank a Swingline Note executed by such Borrower in the amount,
maturity and as otherwise provided herein.
6.03 No Default; Representations and Warranties. At the time of each Credit
Event and also after giving effect
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thereto (i) there shall exist no Default or Event of Default and (ii) all
representations and warranties contained herein or in the other Credit Documents
(except, after the date hereof, 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 Credit Event, 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.
6.04 Opinions of Counsel. (i) On or before the date of the first Credit
Event for OFI, the Administrative Agent shall have received (x) from Davis &
Gilbert, special New York counsel to the Borrowers and the Guarantor, an opinion
addressed to each of the Banks substantially in the form of Exhibit C-1 and
covering such other matters incident to the transactions contemplated herein as
any Bank may reasonably request, and (y) from Milbank, Tweed, Hadley & McCloy,
special New York counsel to ABN AMRO and Chase, 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, and (ii) on or before the date of the first Credit Event for
OFL, the Administrative Agent shall have received (x) from Davis & Gilbert,
special New York counsel to the Borrowers and the Guarantor, 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 (y) from Macfarlanes, special English
counsel to OFL, 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.
6.05 Subsequent Legal Opinions. If, at the time of any Credit Event for
either Borrower subsequent to the date hereof, any Bank, the Swingline Bank or
the Letter of Credit Issuer shall have requested same, the Administrative Agent
shall have received from Davis & Gilbert, special New York counsel to the
Borrowers and the Guarantor, and/or Macfarlanes, special English counsel to OFL,
or such other counsel as shall be reasonably satisfactory to the Required Banks,
an opinion in form and substance satisfactory to the Banks, the Swingline Bank
and the Letter of Credit Issuer, addressed to the Banks, the Swingline Bank and
the Letter of Credit Issuer and dated the date of such Credit Event, covering,
specifically, such of the matters set forth in the opinions of counsel required
to be delivered pursuant to Section 6.04 hereof with respect to the first Credit
Event of such Borrower as the requesting Bank, Swingline Bank or the Letter of
Credit Issuer shall specify.
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6.06 Corporate Documents; Proceedings. (a) On or before the date of the
first Credit Event 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.
(b) On or before the date of the first Credit Event for OFL, the
Administrative Agent shall have received a certificate, signed by a director of
OFL in the form of Exhibit D-2, with appropriate insertions, together with
copies of the organizational documents of OFL and the resolutions of OFL
referred to in such certificate.
(c) On or before the Closing Date, 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-3, 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.
(c) On or before the date of the first Credit Event for such 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.
6.07 Participation Agreement. On or before the Closing Date, the condition
specified in Section 3.01(b) hereof shall have been satisfied.
6.08 Guaranty. On or before the Closing Date, the Guarantor shall have duly
authorized, executed and delivered a Guaranty in the form of Exhibit K (as
modified, supplemented, or amended from time to time, the "Guaranty"), and such
Guaranty shall be in full force and effect as of the date of each Credit Event.
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6.09 Commercial Paper. At the time of the initial issuance of Commercial
Paper, the Letter of Credit shall have been issued and on the date of each
subsequent issuance of Commercial Paper, the Letter of Credit Termination Date
shall not have occurred.
6.10 Existing Credit Agreement. On the Closing Date, which must occur
within 10 Business Days of the date hereof, OFI shall borrow an aggregate amount
(rounded up to the next highest integral multiple of $1,000,000) equal to all
outstanding amounts (including without limitation all loans issued thereunder
and all commercial paper issued pursuant thereto) under the Existing Credit
Agreement together with all accrued but unpaid interest thereon, and all other
amounts owing pursuant to the Existing Credit Agreement (including without
limitation all accrued but unpaid Fees (as defined therein), whether or not then
otherwise due and payable), the proceeds of which shall be simultaneously
applied to pay such outstanding amounts in full.
6.11 Existing Letter of Credit. At or prior to the time of the issuance of
the Letter of Credit, the letter of credit outstanding under the Existing Credit
Agreement shall have been returned by the Depositary to the issuer of the letter
of credit under the Existing Credit Agreement (the "Existing Letter of Credit
Issuer") and canceled by the Existing Letter of Credit Issuer and the Existing
Credit Agreement shall have been terminated.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by such Borrower to each of the Banks that all the
conditions specified in Section 6.03 hereof exist as of that time. All the
Notes, certificates, legal opinions and other documents and papers referred to
in this Section 6, 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 7. Representations, Warranties and Agreements. In order to induce
the Banks and Swingline Bank to enter into this Agreement and to make the Loans,
to participate in Swingline Loans and to issue or participate in the Letter of
Credit, each Borrower (but only OFI with respect to Section 7.09) makes the
following representations, warranties and agreements as to itself as of the date
hereof, which shall survive the execution and delivery of this Agreement and the
Notes and the making of the Loans and the issuance of the Letter of Credit.
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7.01 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.
7.02 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, or in the case of all Commercial Paper, when
issued will have, duly executed and delivered each of the Credit Documents to
which it is party, and each of such Credit Documents constitutes or, in the case
of Commercial Paper, when issued in accordance with the provisions hereof and of
the Depositary Agreement, will constitute, 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).
7.03 No Violation. Neither the execution, delivery or performance by either
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.
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7.04 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.
7.05 Litigation. There are no actions, suits or proceedings pending or, to
the best knowledge of either 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.
7.06 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 (which for purposes of this Section 7.06
includes the Swingline 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 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.
7.07 Use of Proceeds: Margin Regulations. All proceeds of each Loan and of
Commercial Paper shall be used by each Borrower for general corporate purposes;
provided that no part of the proceeds of any Loan or any Commercial Paper 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 G, 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 9 of the Credit Agreement constitute Margin Stock and, at the time of
each Credit Event, 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 9 of the Credit Agreement will constitute Margin Stock. Notwithstanding
the foregoing provisions of this Section 7.07, each Borrower will not
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use the proceeds of any Loan or any Commercial Paper 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. Without the consent of the Swingline Bank, no
proceeds of any Swingline Loan will be used to repay any other Swingline Loan.
7.08 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.
7.09 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 any Subsidiary or ERISA Affiliate of OFI
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 or any of its 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 or any of its Subsidiaries
exists or is likely to arise on account of any Plan; and OFI and its
Subsidiaries may terminate contributions to any other employee benefit plans
maintained by them without incurring any material liability to any Person
interested therein.
7.10 Subsidiaries. As of March 31, 1996, the corporations listed on
Schedule III are the only Subsidiaries of the Borrowers. Schedule III correctly
sets forth, as of
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March 31, 1996, the percentage ownership (direct and indirect) of the Borrowers
in each class of capital stock of each of its Subsidiaries and also identifies
the direct owner thereof.
7.11 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, 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.
7.12 Investment Company Act. Neither Borrower nor any of its Subsidiaries
is an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
7.13 Public Utility Holding Company Act. Neither Borrower nor 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.
7.14 Commercial Paper. All Commercial Paper will constitute exempt
securities under Section 3(a)(2) of the Securities Act of 1933, as amended, and
neither registration of the Commercial Paper under such Act, nor qualification
of an indenture with respect to Commercial Paper under the Trust Indenture Act
of 1939, as amended, will be required in connection with the offer, issuance,
sale or delivery of Commercial Paper.
Section 8. Affirmative Covenants. Each Borrower (but only OFI with respect
to Section 8.05) covenants and agrees as to itself that on and after the date
hereof and until the Total Commitment has terminated, the Letter of Credit has
expired and the Loans, Notes and Unpaid Drawings, together with interest, Fees
and all other obligations incurred hereunder and thereunder, are paid in full:
8.01 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
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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 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 or the Swingline Bank may
reasonably request.
8.02 Books, Records and Inspections. Each Borrower 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. Each Borrower will, and
will cause each of its Subsidiaries to, permit officers and designated
representatives of the Administrative Agent, any Bank or the Swingline 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 account 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, such Bank or the Swingline Bank may request.
8.03 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,
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licenses and patents; provided, however, that nothing in this Section 8.03 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.
8.04 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.
8.05 ERISA. As soon as possible and, in any event, within 10 days after OFI
or any of its Subsidiaries or ERISA Affiliates knows or has reason to know any
of the following, OFI will deliver to each of the Banks a certificate of the
chief financial officer of OFI setting forth details as to such occurrence and
such action, if any, which OFI, 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, 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 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, 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
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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 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 such
Subsidiary.
8.06 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 9. Negative Covenants.
Each Borrower covenants and agrees, as to itself, that on and after the
date hereof and until the Total Commitment has terminated, the Letter of Credit
has expired and the Loans, Notes and Unpaid Drawings, together with interest,
Fees and all other obligations incurred hereunder and thereunder, are paid in
full:
9.01 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 9.01 shall not prevent
the creation, incurrence, assumption or existence of Liens expressly permitted
under Section 7(i) of the Guaranty.
9.02 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 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.
9.03 Leases. Such Borrower will not enter into or permit any Subsidiary to
enter into any agreements to rent or
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lease any real or personal property (excluding capitalized leases) except in the
ordinary course of business.
9.04 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.
9.05 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.
9.06 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.
9.07 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,
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(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.
9.08 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.
9.09 Sale of Commercial Paper. Such Borrower will not retain any dealer or
placement agent with respect to Commercial Paper unless such dealer or placement
agent is approved in writing by the Required Banks which consent shall not be
unreasonably withheld. The Banks hereby approve (i) Chase Securities Inc. and
Goldman Sachs Money Markets, L.P. ("GSMM") to act as placement agents for
Tranche A Commercial Paper and (ii) GSMM to act as placement agent for Tranche B
Commercial Paper. Each Borrower will not permit any offering circular or other
similar document to contain any description of the Letter of Credit Issuer which
description is not approved by the Letter of Credit Issuer in writing.
9.10 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 10. Events of Default. Upon the occurrence of any of the following
specified events (each an "Event of Default"):
10.01 Payments. Either Borrower shall (i) default in the payment when due
of any principal of any Loan or any Note or any Unpaid Drawing with respect
thereto or (ii) default, and such default shall continue unremedied for three or
more Business Days, in the payment when due of any interest on any Loan or any
Note or any Fees or any other amounts owing hereunder or under any Note with
respect thereto; or
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10.02 Representations, etc. Any representation, warranty or statement made
by either Borrower 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
10.03 Covenants. Either Borrower shall (i) default in the due performance
or observance by it of any term, covenant or agreement contained in Section
8.01(b)(i), 8.06 or 9 or (ii) default in the due performance or observance by it
of any term, covenant or agreement (other than those referred to in Sections
10.01 and 10.02 and clause (i) of this Section 10.03) 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, the Swingline
Bank or any Bank; or
10.04 Default Under Other Agreements. Either Borrower, the Guarantor or any
of their Subsidiaries shall (i) default in any payment of any Indebtedness in
excess of $15,000,000 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 its stated maturity; or any such Indebtedness of either 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
10.05 Bankruptcy, etc. Either Borrower, the Guarantor or any of their
Subsidiaries shall commence a voluntary case concerning itself under the United
States Bankruptcy Code (the "Bankruptcy Code"); or an involuntary case is
commenced against either Borrower, the Guarantor or any of their Subsidiaries,
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 either Borrower, the Guarantor or any of their Subsidiaries,
or either Borrower, the Guarantor or any of their Subsidiaries commences any
other proceeding under any reorganization,
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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 any of their Subsidiaries, or there is commenced against such
Borrower, the Guarantor or any of their Subsidiaries any such proceeding which
remains undismissed for a period of 60 days, or either Borrower, the Guarantor
or any of their Subsidiaries is adjudicated insolvent or bankrupt; or any order
of relief or other order approving any such case or proceeding is entered; or
either Borrower, the Guarantor or any of their Subsidiaries 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
either Borrower, the Guarantor or any of their Subsidiaries makes a general
assignment for the benefit of creditors; or any corporate action is taken by
either Borrower, the Guarantor or any of their Subsidiaries for the purpose of
effecting any of the foregoing; provided, that it shall not constitute an Event
of Default under this Agreement to the extent that any of the foregoing events
set forth in this Section 10.05 occurs solely with respect to any Specified
Subsidiary at a time when such Specified Subsidiary has no material assets,
employees or operations; or
10.06 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
10.07 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
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referred to in Sections 7(a)-(g), (1) or (m)); or the Guarantor shall 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
10.08 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
10.09 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
10.10 Judgments. One or more judgments or decrees shall be entered against
either 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 $15,000,000 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; provided, that
it shall not constitute an Event of Default under this Agreement to the extent
that any of the foregoing events set forth in this Section 10.10 occurs solely
with respect to any Specified Subsidiary at a time when such Specified
Subsidiary has no material assets, employees or operations; or
10.11 Fundamental Change of Guarantor. A Fundamental Change (as such term
is defined in the Indenture dated as of September 1, 1993, between the Guarantor
and Morgan Guaranty Trust Company of New York, as trustee) shall occur;
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 (or, in the case of clause (ii) below, the
Required Banks or the Swingline Bank), shall, by written notice to the
Borrowers, take any or all of the following actions, without prejudice to the
rights of the Administrative Agent, the Letter of Credit Issuer, any Bank, the
Swingline Bank or the holder of any Note to enforce its claims against the
Borrowers (provided that, if an Event of Default specified in Section 10.05
shall occur with respect to
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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), (ii) and
(iii) 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 and the commitment of the Letter of Credit Issuer
to maintain the Letter of Credit shall forthwith terminate immediately (subject
in the case of the Letter of Credit to Section 3.01(f)) and any Facility Fees,
Letter of Credit Fees, Letter of Credit Usage Fees and all other fees shall
forthwith become due and payable without any other notice of any kind; (ii)
declare the Swingline Commitment terminated, whereupon the Swingline Commitment
of the Swingline Bank to make Swingline Loans hereunder shall terminate
immediately (provided that the foregoing provisions of this clause (ii) shall be
without prejudice to the obligations of the Banks under Section 2.14 hereof);
(iii) 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; and/or (iv) direct the Borrowers to pay (and the Borrowers agree
that upon receipt of such notice (or upon the occurrence of an Event of Default
specified in Section 10.05) it will pay) to the Administrative Agent at the
Administrative Agent's Payment Office such amount of cash, to be held as
security by the Administrative Agent, as is equal to the Face Amount of any
outstanding Commercial Paper.
Section 11. The Administrative Agent; Agents.
11.01 Appointment. The Banks (which for purposes of this Section 11.01
includes the Swingline Bank) hereby designate ABN AMRO 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 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.
11.02 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
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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, the
Swingline 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.
11.03 Lack of Reliance on the Administrative Agent. Independently and
without reliance upon the Administrative Agent, each Bank (which for purposes of
this Section 11.03 includes the Swingline 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.
11.04 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
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liability to any Person by reason of so refraining. Without limiting the
foregoing, no Bank (which for purposes of this Section 11.04 includes the
Swingline 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 acting or refraining from acting hereunder or under any other Credit
Document in accordance with the instructions of the Required Banks.
11.05 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.
11.06 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 11.06 shall survive
the termination of this Agreement.
11.07 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 or to the Swingline Bank.
11.08 Holders. The Administrative Agent may deem and treat the payee of any
Note as the owner thereof for all purposes
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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.
11.09 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 Borrower, the Banks and the Swingline Bank. 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.
(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.
11.10 The Co-Arrangers; Syndication Agent; Managing Banks. The
Co-Arrangers, the Syndication Agent and the Managing Banks referred to on the
cover page of this Agreement shall have no rights or obligations under this
Agreement except (i) in the case of ABN AMRO, in its capacity as the Issuing
Bank, a Managing Bank and a "Bank" and the "Swingline Bank" hereunder and (ii)
in the case of Chase, in its capacity as a Managing Bank and a "Bank" hereunder.
Credit Agreement
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11.11 Replacement. The Guarantor may, with the consent of the Required
Banks, replace the Bank which is acting in the capacity of Administrative Agent
or either of the Banks which are acting in the capacity as Managing Banks, but
solely with respect to such capacities; provided that if the Guarantor replaces
ABN AMRO in its capacity as Administrative Agent, the Guarantor will, at the
request of ABN AMRO, use its best efforts to replace ABN AMRO in its capacity as
Letter of Credit Issuer.
Section 12. Miscellaneous.
12.01 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) 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 or consent relating
hereto or thereto and (y) of the Administrative Agent, the Letter of Credit
Issuer, the Swingline Bank 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, for the
Letter of Credit Issuer, for the Swingline Bank and for each of the Banks); (ii)
pay and hold each of the Banks, the Swingline Bank and the Letter of Credit
Issuer 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,
the Swingline Bank and the Letter of Credit Issuer 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, the Swingline Bank or the
Letter of Credit Issuer) to pay such taxes; and (iii) indemnify each of the
Administrative Agent, the Letter of Credit Issuer, the Swingline Bank and each
Bank, its 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, 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, the Swingline Bank, the
Letter of Credit Issuer or any Bank is a party thereto) related to the entering
into and/or performance of this Agreement or any other Credit Document, the
issuance or maintenance of the Letter of Credit or the participation therein or
the use or proposed use of the proceeds of any Loans or the Commercial Paper
hereunder or the consummation of any transactions contemplated herein or in any
other Credit Document,
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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).
12.02 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 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 Borrower 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 the Borrowers against and on
account of the Obligations and liabilities of the Borrowers 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 12.06(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.
12.03 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 Base Rate Lending Office specified opposite its name on Schedule II; if
to the Swingline Bank, at its Swingline Lending Office specified opposite its
name on Schedule II; if to the Administrative Agent or the Letter of Credit
Issuer, at its Notice Office; if to the Depositary, at its address for notices
provided for or pursuant to the Depositary Agreement; or, as to the Borrowers,
the Administrative Agent or the Letter of Credit Issuer, 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, the Administrative Agent,
the Swingline Bank and the Letter of Credit Issuer. All such notices and
communications shall, when mailed, telegraphed, telexed, telecopied, or cabled
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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, the Swingline Bank, the Depositary
or the Letter of Credit Issuer, and notices and communications sent by mail to
any party, shall not be effective until received.
12.04 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 hereto; provided, however, that the Borrowers may not
assign or transfer any of its rights or obligations hereunder without the prior
written consent of the Banks (which, for purposes of this Section 12.04(a)
includes the Swingline Bank) 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
12.04(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 12.13. 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 5.04 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 12.04(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), the
Managing Banks (whose consent shall not be unreasonably withheld), the Swingline
Bank and the Letter of Credit Issuer, 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
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Schedule I hereto and Annex A to the Participation Agreement shall be deemed
modified to reflect the Commitments, Tranche A Participation Percentages and
Tranche B Participation Percentages of such new Bank and of the existing Banks,
(ii) upon surrender of the old Notes, new Notes will be issued, at the expense
of the Borrower that issued the Note, 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 and (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. To the extent of any assignment
pursuant to this Section 12.04(b), the assigning Bank shall be relieved of its
obligations hereunder and under the Participation Agreement 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 12.04(b) would, at the time of such assignment, result in increased
costs under Section 2.10, 2.11 or 5.04 greater than those being charged by the
respective assigning Bank prior to such assignment, then the Borrowers shall not
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 the foregoing, the Swingline Bank may, with prior
written consent of the Guarantor and the Managing Banks, assign all (but not
less than all) of the Swingline Commitment, its Swingline Loans and its
Swingline Notes to a commercial bank or other financial institution, provided
that upon surrender of the old Swingline Notes, new Swingline Notes will be
issued, at the expense of the Borrower that issued the Note, to such new
Swingline Bank, such new Swingline Notes to be in conformity with the
requirements of Section 2.05 (with appropriate modifications) to the extent
needed to reflect the assignment. To the extent of any assignment pursuant to
this Section 12.04(c), the assigning Swingline Bank shall be relieved of its
obligations hereunder with respect to its assigned Swingline Commitments.
(d) Notwithstanding anything to the contrary contained herein, each Bank
and the Swingline 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
or Swingline Bank, as the case may be, from such Federal Reserve Bank.
12.05 No Waiver: Remedies Cumulative. No failure or delay on the part of
the Administrative Agent, the Letter of Credit Issuer, the Swingline Bank or any
Bank or the holder of any Note in exercising any right, power or privilege
hereunder or
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under any other Credit Document and no course of dealing between the Borrowers,
the Administrative Agent, the Letter of Credit Issuer, the Swingline Bank 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, the Letter of Credit Issuer, the Swingline Bank
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, the Letter of Credit Issuer,
the Swingline Bank or any Bank or the holder of any Note to any other or further
action in any circumstances without notice or demand.
12.06 Payments Pro Rata. (a) The Administrative Agent agrees that promptly
after its receipt of each payment from or on behalf of either Borrower in
respect of any Obligations of such Borrower hereunder, it shall distribute such
payment to the Banks and the Swingline Bank 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 (which for purposes of this Section 12.06(b) includes
the Swingline Bank) 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, Unpaid
Drawings, Commitment Fees or Letter of Credit 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.
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12.07 Calculations; Computations. All computations of interest, Facility
Fees, Letter of Credit Usage Fees, Letter of Credit Fees and other 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, Facility Fees, Letter of Credit Usage Fees, Letter of Credit Facility
Fees or other 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.
12.08 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 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
Credit Agreement
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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.
12.09 Obligation to Make Payments 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 5.03 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, the Swingline Bank 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.
12.10 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.
12.11 Effectiveness. This Agreement shall become effective on the date
hereof, provided that the Borrowers, each of the Banks, the Administrative
Agent, the Swingline Bank and the Letter of Credit Issuer shall have signed a
copy hereof (whether the same or different copies) and shall have delivered the
same to the Administrative Agent at the Payment Office of the Administrative
Agent or, in the case of the Banks, shall have given to the Administrative Agent
telephonic (confirmed in writing), written, telex or telecopy notice (actually
received) at such office that the same has been signed and mailed to it.
12.12 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted
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for convenience only and shall not in any way affect the meaning or construction
of any provision of this Agreement.
12.13 Amendment or Waiver. None of this Agreement, any other Credit
Document or the Letter of Credit 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 and the Administrative
Agent; provided, however, that: (a) no such change, waiver, discharge or
termination shall, without the consent of each Bank, the Swingline Bank and the
Letter of Credit Issuer, (i) extend the Expiry Date or the final maturity of any
Loan, Note, or Unpaid Drawing 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 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
12.13 or Section 11.06, 12.01, 12.02, 12.04, 12.06 or 12.07, (iv) reduce the
percentage specified in the definition of Required Banks, (v) consent to the
assignment or transfer by the Borrowers of any of their rights and obligations
under this Agreement or (vi) extend the expiration date of, or increase the
Stated Amount of, the Letter of Credit; and (b) any modification or supplement
of any provision hereof relating to the rights or obligations of the Swingline
Bank shall require the consent of the Swingline Bank.
Notwithstanding anything to the contrary contained in this Agreement, no
material change or amendment to this Agreement shall be effective until the
Borrowers or the Administrative Agent shall have notified Moody's and S&P in
writing of such change or amendment.
12.14 Survival. All indemnities set forth herein including, without
limitation, in Sections 2.10, 2.11, 5.04, 11.06 and 12.01 shall survive the
execution and delivery of this Agreement and the Notes and the making and
repayment of the Loans.
12.15 Domicile of Loans. Subject to Section 5.04(b), but notwithstanding
Section 12.04(b), each Bank (which for purposes of this Section 12.15 includes
the Swingline 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 transfer 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
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discretion such Bank finds that such nontransfer would be disadvantageous to it.
12.16 Limitation on Additional Amounts, etc. Notwithstanding anything to
the contrary contained in Sections 2.10, 2.11 or 5.04 of this Agreement, unless
a Bank gives notice to the Borrowers that they are obligated to pay an amount
under any such Section within one year 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) 60 days after 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 5.04, as the case may be, to the extent
the costs, Taxes, loss, expense or liability, reduction in amounts received or
receivable or reduction in return on capital are incurred or suffered on or
after the date which occurs one year prior to such Bank giving notice to the
Borrowers that it is obligated to pay the respective amounts pursuant to said
Section 2.10, 2.11 or 5.04, as the case may be. This Section 12.16 shall have no
applicability to any Section of this Agreement other than said Section 2.10,
2.11 and 5.04.
Credit Agreement
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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 OMNICOM FINANCE INC.
New York, New York 10022
By:__________________________
Name:
Title:
OMNICOM FINANCE LIMITED
By:__________________________
Name:
Title:
By:__________________________
Name:
Title:
THE CHASE MANHATTAN BANK, N.A.
By:__________________________
Name:
Title:
THE NORTHERN TRUST COMPANY
By:__________________________
Name:
Title:
SOCIETE GENERALE
By:__________________________
Name:
Title:
Credit Agreement
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ABN AMRO BANK N.V., NEW YORK BRANCH
By:__________________________
Name:
Title:
By:__________________________
Name:
Title:
CITIBANK, N.A.
By:__________________________
Name:
Title:
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By:__________________________
Name:
Title:
By:__________________________
Name:
Title:
MARINE MIDLAND BANK
By:__________________________
Name:
Title:
Credit Agreement
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BANK OF AMERICA NT&SA
By:__________________________
Name:
Title:
THE FUJI BANK, LIMITED
By:__________________________
Name:
Title:
MELLON BANK, N.A.
By:__________________________
Name:
Title:
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By:__________________________
Name:
Title:
By:__________________________
Name:
Title:
WACHOVIA BANK OF GEORGIA, N.A.
By:__________________________
Name:
Title:
Credit Agreement
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WESTPAC BANKING CORPORATION
By:__________________________
Name:
Title:
ABN AMRO BANK N.V., NEW YORK BRANCH,
as Administrative Agent
By:__________________________
Name:
Title:
Credit Agreement
SCHEDULE I
Schedule of Commitments
Tranche A Loan Tranche B
Name of Bank Commitment Loan Commitment
- ------------ -------------- ---------------
THE CHASE MANHATTAN
BANK, N.A. $0 $40,000,000
ABN AMRO BANK N.V., $40,000,000 $0
NEW YORK BRANCH
BANK OF AMERICA NT&SA $40,000,000 $0
THE NORTHERN TRUST COMPANY $35,000,000 $0
MARINE MIDLAND BANK $30,000,000 $0
MELLON BANK, N.A. $30,000,000 $0
DRESDNER BANK AG,
NEW YORK AND GRAND CAYMAN
ISLAND BRANCHES $25,000,000 $0
CITIBANK, N.A. $20,000,000 $0
THE FUJI BANK, LIMITED $20,000,000 $0
SOCIETE GENERALE $20,000,000 $0
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH $20,000,000 $0
WACHOVIA BANK OF GEORGIA,
N.A. $20,000,000 $0
WESTPAC BANKING
CORPORATION $20,000,000 $0
------------ -----------
$320,000,000 $40,000,000
============ ===========
SCHEDULE II
Base Rate Eurodollar
Name of Bank Lending Office Lending Office
- ------------ -------------- --------------
THE CHASE MANHATTAN Same as Name of Same as Name of
BANK, N.A. Bank Bank
One Chase Manhattan Plaza
New York, New York 10081
Attention: Bruce Langenkamp
THE NORTHERN TRUST COMPANY Same as Name of Same as Name of
50 South LaSalle Street Bank Bank
Chicago, Illinois 60675
Attention: Joseph Yacullo
SOCIETE GENERALE Same as Name of Same as Name of
1221 Avenue of the Americas Bank Bank
New York, New York 10020
Attention: Elaine Khalil
ABN AMRO BANK N.V., ABN AMRO Bank N.V., ABN AMRO Bank N.V.,
New York Branch New York Branch New York Branch
For Notices: 500 Park Avenue 500 Park Avenue
335 Madison Avenue New York, New York 10022 New York, New York 10022
New York, New York 10017 Attention: Pamela Attention: Pamela
Attention: Linda Boardman del Vecchio del Vecchio
CITIBANK, N.A. Citibank, N.A. Citibank, N.A.
For Notices: 399 Park Avenue 399 Park Avenue
Citicorp 4th Floor, Zone 16 4th Floor, Zone 16
One Court Square New York, New York 10043 New York, New York 10043
Long Island City, NY 11120 Attention: Tara Farley Attention: Tara Farley
7th Floor, Zone 3
Attention: Patricia Ganes
DRESDNER BANK AG, Same as Name of Dresdner Bank AG,
New York Branch Bank Grand Cayman Branch
75 Wall Street c/o Dresdner Bank AG,
New York, New York 10005 New York Branch
Attention: Robert Grella 75 Wall Street
New York, New York 10005
Attention: Robert Grella
SCHEDULE II
Page 2
Base Rate Eurodollar
Name of Bank Lending Office Lending Office
- ------------ -------------- --------------
MARINE MIDLAND BANK Marine Midland Bank Marine Midland Bank
140 Broadway, 2nd Floor One MM Center One MM Center
New York, New York 10005 Buffalo, New York 14203 Buffalo, New York 14203
Attention: Marvin R. Crepea Attention: Beth Weiss Attention: Beth Weiss, Agency
Agency Servicing Servicing
BANK OF AMERICA NT&SA Bank of America Illinois Bank of America Illinois
335 Madison Avenue 231 South LaSalle Street 231 South LaSalle Street
New York, New York 10017 Chicago, Illinois 60697 Chicago, Illinois 60697
Attention: Amy S. Trapp Attention: Bonnie Attention: Bonnie
Ptaszkowski Ptaszkowski
THE FUJI BANK, LIMITED Same as Name of Same as Name of
New York Branch Bank Bank
2 World Trade Center
79th Floor
New York, New York 10048
Attention: Mark Nolan
MELLON BANK, N.A. Same as Name of Same as Name of
Three Mellon, Bank Center Bank Bank
Room 153-2302
Pittsburgh, PA 15258
Attention: Rose Covel
UNION BANK OF SWITZERLAND Same as Name of Same as Name of
New York Branch Bank Bank
299 Park Avenue, 33 Floor
New York, New York 10171
Attention: Daniel R. Strickford
WACHOVIA BANK OF GEORGIA, Same as Name of Same as Name of
N.A. Bank Bank
191 Peachtree St. N.E.
28th Floor
Atlanta, Georgia 30303
Attention: William C. Christie
WESTPAC BANKING CORPORATION Same as Name of Same as Name of
575 Fifth Avenue Bank Bank
New York, New York 10017
Attention: Joan Clarke
SCHEDULE III
Subsidiaries
None
EXHIBIT A-1
NOTICE OF BORROWING
[Date]
ABN AMRO Bank N.V., New York Branch
as Administrative Agent for the Banks
party to the Credit
Agreement referred to below
500 Park Avenue
New York, New York 10022
Attention: __________________________
Ladies and Gentlemen:
The undersigned, [Omnicom Finance Inc.][Omnicom Finance Limited], refers to
the Credit Agreement dated as of May 10, 1996 (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 ABN AMRO Bank N.V., New York Branch, as maker of
Swingline Loans referred to therein, as Letter of Credit Issuer and 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 is ___________, 19_
(ii) The aggregate principal amount of the Proposed Borrowing is
$_________________.
(iii) The Proposed Borrowing is to consist of [Base Rate Loans] [Eurodollar
Rate Loans].
(iv) The Proposed Borrowing is to be of [Tranche A] [Tranche B] Loans.
(1)[(iv) The initial Interest Period for the Proposed Borrowing is ____
months.]
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Borrowing:
- --------
(1) To be included for a Proposed Borrowing of Eurodollar Rate Loans.
EXHIBIT A-1
Page 2
[(A) The representations and warranties contained in Section 7 of the
Credit Agreement are correct, before and after giving effect to the Proposed
Borrowing and to the application of the proceeds thereof, as though made on and
as of such date.]
[(B) No Default or Event of Default has occurred and is continuing, or
would result from such Proposed Borrowing or from the application of the
proceeds thereof.]
[(C) The proceeds of the Proposed Borrowing will be applied in full on the
date of the Proposed Borrowing to the repayment of Commercial Paper maturing on
such date.]
Very truly yours,
[OMNICOM FINANCE INC.][OMNICOM FINANCE
LIMITED]
By____________________
Title:
- ----------
Either clauses (A) and (B) or clause (C) must be included; provided, that clause
(B) shall be included with clause (C) if the Proposed Borrowing is of a
Eurodollar Rate Loan.
EXHIBIT A-2
NOTICE OF SWINGLINE BORROWING
[Date]
ABN AMRO Bank N.V., New York Branch
as Administrative Agent for the Banks
party to the Credit
Agreement referred to below
500 Park Avenue
New York, New York 10022
Attention: __________________________
Ladies and Gentlemen:
The undersigned, [Omnicom Finance Inc.][Omnicom Finance Limited], refers to
the Credit Agreement dated as of May 10, 1996 (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 ABN AMRO Bank N.V., New York Branch, as maker of
Swingline Loans referred to therein, as Letter of Credit Issuer and as
Administrative Agent for such Banks and hereby gives you notice, irrevocably,
pursuant to Section 2.14 of the Credit Agreement, that the undersigned hereby
requests a Swingline Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Swingline Borrowing
(the "Proposed Swingline Borrowing") as required by Section 2.14 of the Credit
Agreement:
(i) The Business Day of the Proposed Swingline Borrowing is ___________,
19__.
(ii) The aggregate principal amount of the Proposed Swingline Borrowing is
$_________________.
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Borrowing:
(A) The representations and warranties contained in Section 7 of the
Credit Agreement are correct, before and after giving effect to the
Proposed Swingline Borrowing and to the application of the proceeds
thereof, as though made on and as of such date.
(B) No Default or Event of Default has occurred and is continuing, or
would result from such Proposed Swingline Borrowing or from the application
of the proceeds thereof.
EXHIBIT A-2
Page 2
Very truly yours,
[OMNICOM FINANCE INC.][OMNICOM FINANCE
LIMITED]
By____________________
Title:
EXHIBIT B-1
TRANCHE A NOTE
$_______________________ New York, New York
____________, 19__
FOR VALUE RECEIVED, [OMNICOM FINANCE INC., a corporation organized and
existing under the laws of Delaware] [OMNICOM FINANCE LIMITED, a corporation
organized and existing under the laws of England] (the "Borrower"), hereby
promises to pay to the order of _____________________ (the "Bank"), for the
account of its Applicable Lending Office (as defined in the Credit Agreement
referred to below), in lawful money of the United States of America in
immediately available funds, at the office of ABN AMRO Bank N.V., New York
Branch (the "Administrative Agent") located at 500 Park Avenue, New York, New
York 10022 on the Expiry Date (as defined in the Agreement) the principal sum of
_______________ United States Dollars or, if less, the unpaid principal amount
of all Tranche A Loans (as defined in the Agreement) made by the Bank to the
Borrower pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid principal amount
of each Tranche A Loan in like money at said office from the date such Tranche A
Loan is made until paid at the rates and at the times provided in the Agreement.
This Note is one of the Tranche A Notes referred to in the Credit Agreement
dated as of May 10, 1996 among the "Borrowers" referred to therein (including
the Borrower), the Bank, the other financial institutions party thereto and ABN
AMRO Bank N.V., New York Branch, as maker of Swingline Loans referred to
therein, as Letter of Credit Issuer and as Administrative Agent (as from time to
time in effect, the "Agreement") and is entitled to the benefits thereof. This
Note is guaranteed pursuant to the Guaranty (as defined in the Agreement). As
provided in the Agreement, this Note is subject to voluntary and mandatory
prepayment, in whole or in part, and Tranche A Loans may be converted from one
Type (as defined in the Agreement) into another Type to the extent provided in
the Agreement.
In case an Event of Default (as defined in the Agreement) shall occur and
be continuing, the principal of and accrued interest on this Note may be
declared to be due and payable in the manner and with the effect provided in the
Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
This Note shall be construed in accordance with and be governed by the law
of the State of New York.
[OMNICOM FINANCE INC.]
[OMNICOM FINANCE LIMITED]
By___________________________
Title:
EXHIBIT B-2
TRANCHE B NOTE
$_____________________ New York, New York
____________, 19__
FOR VALUE RECEIVED, [OMNICOM FINANCE INC., a corporation organized and
existing under the laws of Delaware] [OMNICOM FINANCE LIMITED, a corporation
organized and existing under the laws of England] (the "Borrower"), hereby
promises to pay to the order of __________________ (the "Bank"), for the account
of its Applicable Lending Office (as defined in the Credit Agreement referred to
below), in lawful money of the United States of America in immediately available
funds, at the office of ABN AMRO Bank N.V., New York Branch (the "Administrative
Agent") located at 500 Park Avenue, New York, New York 10022 on the Expiry Date
(as defined in the Agreement) the principal sum of _______________ United States
Dollars or, if less, the unpaid principal amount of all Tranche B Loans (as
defined in the Agreement) made by the Bank to the Borrower pursuant to the
Agreement.
The Borrower promises also to pay interest on the unpaid principal amount
of each Tranche B Loan in like money at said office from the date such Tranche B
Loan is made until paid at the rates and at the times provided in the Agreement.
This Note is one of the Tranche B Notes referred to in the Credit Agreement
dated as of May 10, 1996 among the "Borrowers" referred to therein (including
the Borrower), the Bank, the other financial institutions party thereto and ABN
AMRO Bank N.V., New York Branch, as maker of Swingline Loans referred to
therein, as Letter of Credit Issuer and as Administrative Agent, (as from time
to time in effect, the "Agreement") and is entitled to the benefits thereof.
This Note is guaranteed pursuant to the Guaranty (as defined in the Agreement).
As provided in the Agreement, this Note is subject to voluntary and mandatory
prepayment, in whole or in part, and Tranche B Loans may be converted from one
Type (as defined in the Agreement) into another Type to the extent provided in
the Agreement.
In case an Event of Default (as defined in the Agreement) shall occur and
be continuing, the principal of and accrued interest on this Note may be
declared to be due and payable in the manner and with the effect provided in the
Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
EXHIBIT B-2
Page 2
This Note shall be construed in accordance with and be governed by the law
of the State of New York.
[OMNICOM FINANCE INC.]
[OMNICOM FINANCE LIMITED]
By__________________________
Title:
EXHIBIT B-3
COMPETITIVE BID NOTE
New York, New York
____________, 19__
FOR VALUE RECEIVED, [OMNICOM FINANCE INC., a corporation organized and
existing under the laws of Delaware] [OMNICOM FINANCE LIMITED, a corporation
organized and existing under the laws of England] (the "Borrower"), hereby
promises to pay to the order of _____________________ (the "Bank"), for the
account of its Applicable Lending Office (as defined in the Credit Agreement
referred to below), in lawful money of the United States of America in
immediately available funds, at the office of ABN AMRO Bank N.V., New York
Branch (the "Administrative Agent") located at 500 Park Avenue, New York, New
York 10022 the unpaid principal amount of each Competitive Bid Loans (as defined
in the Agreement) made by the Bank to the Borrower pursuant to the Agreement on
the day such Competitive Bid Loan is required to be paid in full (as provided in
the Agreement).
The Borrower promises also to pay interest on the unpaid principal amount
of each Competitive Bid Loan in like money at said office from the date such
Competitive Bid Loan is made until paid at the rates and at the times provided
in the Agreement.
This Note is one of the Competitive Bid Notes referred to in the Credit
Agreement dated as of May 10, 1996 among the "Borrowers" referred to therein
(including the Borrower), the Bank, the other financial institutions party
thereto and ABN AMRO Bank N.V., New York Branch, as maker of Swingline Loans
referred to therein, as Letter of Credit Issuer and as Administrative Agent (as
from time to time in effect, the "Agreement") and is entitled to the benefits
thereof. This Note is guaranteed pursuant to the Guaranty (as defined in the
Agreement).
In case an Event of Default (as defined in the Agreement) shall occur and
be continuing, the principal of and accrued interest on this Note may be
declared to be due and payable in the manner and with the effect provided in the
Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
This Note shall be construed in accordance with and be governed by the law
of the State of New York.
[OMNICOM FINANCE INC.]
[OMNICOM FINANCE LIMITED]
By___________________________
Title:
EXHIBIT B-4
SWINGLINE NOTE
$_____________________ New York, New York
____________, 19__
FOR VALUE RECEIVED, [OMNICOM FINANCE INC., a corporation organized and
existing under the laws of Delaware] [OMNICOM FINANCE LIMITED, a corporation
organized and existing under the laws of England] (the "Borrower"), hereby
promises to pay to the order of __________________ (the "Swingline Bank"), for
the account of its Applicable Lending Office (as defined in the Credit Agreement
referred to below), in lawful money of the United States of America in
immediately available funds, at the office of ABN AMRO Bank N.V., New York
Branch (the "Administrative Agent") located at 500 Park Avenue, New York, New
York 10022 on the Expiring Date (as defined in the Agreement) the principal sum
of _________________ United States Dollars or, if less, the unpaid principal
amount of all Swingline Loans (as defined in the Agreement) made by the Bank to
the Borrower pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid principal amount
of each Swingline Loan in like money at said office from the date such Swingline
Loan is made until paid at the rates and at the times provided in the Agreement.
This Note is one of the Swingline Notes referred to in the Credit Agreement
dated as of May 10, 1996 among the "Borrowers" referred to therein (including
the Borrower), the Bank, the other financial institutions party thereto and ABN
AMRO Bank, N.V., New York Branch, as maker of Swingline Loans referred to
therein, as Letter of Credit Issuer and as Administrative Agent (as from time to
time in effect, the "Agreement") and is entitled to the benefits thereof. This
Note is guaranteed pursuant to the Guaranty (as defined in the Agreement). As
provided in the Agreement, this Note is subject to voluntary and mandatory
prepayment, in whole or in part.
In case an Event of Default (as defined in the Agreement) shall occur and
be continuing, the principal of and accrued interest on this Note may be
declared to be due and payable in the manner and with the effect provided in the
Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
EXHIBIT B-4
Page 2
This Note shall be construed in accordance with and be governed by the law
of the State of New York.
[OMNICOM FINANCE INC.]
[OMNICOM FINANCE LIMITED]
By__________________________
Title:
EXHIBIT C-1
FORM OF OPINION OF COUNSEL (NEW YORK) - OFI
May __, 1996
To the Persons Listed on the
Attached Annex I
Ladies and Gentlemen:
We have acted as special New York counsel for Omnicom Finance Inc., a
corporation organized and existing under the laws of Delaware ("OFI"), Omnicom
Finance Limited, a corporation organized and existing under the laws of England
and Wales ("OFL" and together with OFI, individually, a "Borrower" and
collectively, the "Borrowers") and Omnicom Group Inc., a corporation organized
and existing under the laws of New York (the "Guarantor"), in connection with
the execution and delivery of the following documents (collectively, the "Credit
Documents"):
(a) the Credit Agreement, dated as of May 10, 1996, among the
Borrowers, the banks parties thereto (the "Banks"), ABN AMRO Bank N.V., New
York Branch, as Swingline Bank and as Letter of Credit Issuer and ABN AMRO
Bank N.V., New York Branch, as the Administrative Agent (the "Credit
Agreement");
(b) the Notes of OFI, to be delivered pursuant to the Credit
Agreement;
(c) the Guaranty of the Guarantor, dated as of May 10, 1996 (the
"Guaranty");
(d) the Commercial Paper Dealer Agreement dated as of May 10, 1996,
between OFI and Chase Securities Inc. ("Chase Agreement") and the
Commercial Paper Dealer Agreement dated as of May 10, 1996, between OFI and
Goldman Sachs Money Markets, L.P. (the "GSMM Dealer Agreement");
(e) the Depositary Agreement, dated as of May 10, 1996, among the
Borrowers, the Depositary, the Administrative Agent and the Letter of
Credit Issuer; and
(f) the Commercial Paper to be issued by OFI in the commercial paper
market pursuant to the Depositary Agreement and backed by the Letter of
Credit.
This opinion is delivered to you pursuant to Section 6.04 of the Credit
Agreement, Section 3(c) of the Chase Dealer Agreement and Paragraph 3 of the
EXHIBIT C-1
Page 2
GSMM Dealer 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 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 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, officers and
representatives of the Borrowers and the Guarantor.
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 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 of 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
EXHIBIT C-1
Page 3
of any kind, that the Credit Documents constitute the valid and legally binding
obligations of each party thereto other than OFI and the Guarantor.
In giving the opinion expressed in paragraph numbered 3 below, we have
relied upon a certificate of an officer of each of OFI and the Guarantor which
specifically identifies, and states that we have received copies of, each
indenture, mortgage, deed of trust, credit agreement, loan agreement and any
other similar material agreement, contract or instrument to which OFI or the
Guarantor or any of the Designated Subsidiaries (as hereinafter defined), as the
case may be, is a party or by which it or any of its property or assets is bound
or to which it may be subject. In giving the opinion set forth in paragraph
numbered 4 below, we have relied upon a certificate of an officer of each of OFI
and the Guarantor describing actions, suits and proceedings currently pending or
threatened against OFI or the Guarantor or the Subsidiaries, as the case may be,
that if adversely determined, are reasonably likely to materially and adversely
affect the operations, business, property, assets, condition (financial or
otherwise) or (to the best knowledge of OFI or the Guarantor, as the case may
be) prospects of OFI or the Guarantor or the Guarantor and its Subsidiaries
taken as a whole. Copies of the certificates referred to in this paragraph are
attached at the end of this opinion. Furthermore, in giving the opinions
expressed in paragraphs numbered 3 and 5 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 OFI, the Guarantor and the designated subsidiaries of the
Guarantor listed on Annex II 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, (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, to the best
of our knowledge, the failure to be so qualified could not have a material
adverse effect on the business, operations, property, assets, condition
(financial or otherwise) or prospects of OFI, the Guarantor, or the Guarantor
and the Designated Subsidiaries taken as a whole.
2. Each of OFI 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.
EXHIBIT C-1
Page 4
Each of OFI 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 and OFI are a party, constitutes their respective legal, valid and
binding obligation enforceable against the Guarantor and OFI in accordance with
the terms of such Credit Document.
3. Neither the execution, delivery or performance by OFI 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, rule or regulation (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System) of the United States of
America or the State of New York or, to the best of our knowledge after due
inquiry, any order, writ, injunction or decree of any court or governmental
instrumentality of or in the United States of America or the State of New York,
(ii) will 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
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of OFI, the Guarantor or any of the Designated Subsidiaries
pursuant to the terms of any indenture, mortgage, deed of trust, credit
agreement, loan agreement or any other material agreement listed in the
officer's certificate referred to above or (iii) will violate any provision of
the Certificate of Incorporation or By-Laws of OFI or the Guarantor.
4. To the best of our knowledge based on the certificate regarding
litigation referred to above, there are no actions, suits or proceedings pending
or threatened (i) with respect to any Credit Document or (ii) that, if adversely
determined, are reasonably likely to materially and adversely affect the
operations, business, property, assets or condition (financial or otherwise) of
OFI or the Guarantor or the Guarantor and its Subsidiaries taken as a whole.
5. 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 of or in the United States of America or the State of New York, 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 OFI or the Guarantor is a party or (ii) the enforceability of any such
Credit Document against OFI or the Guarantor.
6. None of OFI, the Guarantor or any Designated Subsidiary is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
EXHIBIT C-1
Page 5
7. None of OFI, the Guarantor or any Designated Subsidiary 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.
8. 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.
9. The consent by OFI in Section 12.08 of the Credit Agreement, and by the
Guarantor in Section 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.
10. In reliance upon the legal opinion of Milbank, Tweed, Hadley & McCloy,
which states, among other things, that the New York branch of ABN AMRO Bank
N.V., as Letter of Credit Issuer, is subject to regulation and supervision in a
manner substantially equivalent to that applicable to a state chartered bank
doing business in New York, and assuming that the proceeds of the Commercial
Paper are used for the purpose set forth in the Credit Agreement, Commercial
Paper issued and sold in accordance with the terms of the Credit Agreement and
the Depositary Agreement will be an exempt security under Section 3(a) (2) of
the Securities Act of 1933, as amended, and neither registration of such
Commercial Paper under said Act, nor qualification of an indenture with respect
to such Commercial Paper under the Trust Indenture Act of 1939, as amended, is
required in connection with the offering, issuance, sale or delivery of such
Commercial Paper under the circumstances contemplated by the Depositary
Agreement.
Our opinions are subject to the qualifications that:
A. The enforceability of the Credit Documents is subject to the effect of
any applicable bankruptcy, insolvency, moratorium, reorganization, marshaling or
other similar law or rule of law affecting creditor's rights generally
(including such as may deny giving effect to waivers of debtors' or guarantors'
rights), and to the discretionary nature of equitable remedies.
B. The enforcement of any rights under any of the Credit Documents are in
all cases subject to each party's implied duty of good faith and to general
principles of equity (regardless of whether enforcement is considered in a
proceeding at law or in equity). Consequently, 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.
EXHIBIT C-1
Page 6
C. We express no opinion as to the enforceability of any contractual
provision in the Credit Documents relating to indemnification, or waiver of jury
trial, process or other procedural right, to the extent enforcement thereof is
contrary to federal or state securities laws and the public policy underlying
such laws.
D. No opinion is given herein as to:
(i) the enforceability of the power of attorney granted under Section
2.03(b) of the Credit Agreement, which authorizes and empowers the
Swingline Bank to deliver a Notice of Borrowing to the Administrative
Agent, on behalf of the Borrowers, to the extent that such power of
attorney purports to give the Swingline Bank rights and powers that are not
available to it as a creditor;
(ii) the enforceability of any right or obligation to the extent that
the same has been varied by course of dealing or performance; or
(iii) the enforceability of the provisions of Section 12.09 of the
Credit Agreement or Section 19 of the Guaranty to the extent that a
non-U.S. dollar judgment is obtained in respect of the Credit Agreement in
a jurisdiction other than the United States of America and the Borrowers or
the Guarantor pay such judgment.
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.
Moody's Investors Service, Inc., Standard & Poor's Ratings Group, Goldman
Sachs Money Markets, L.P. and Chase Securities, Inc. may rely upon this opinion
as if it were addressed to them. The opinions expressed herein may not be relied
upon in any manner or for any purpose by any other person other than the persons
to which they are addressed.
Very truly yours,
EXHIBIT C-1
Page 7
ANNEX I
UNION BANK OF SWITZERLAND THE FUJI BANK, LIMITED
New York Branch New York Branch
299 Park Avenue Two World Trade Center
33rd Floor 79th Floor
New York, New York 10171 New York, New York 10048
WACHOVIA BANK OF GEORGIA, N.A. ABN AMRO BANK N.V.,
191 Peach Tree Street, N.E. New York Branch
29th Floor 500 Park Avenue
Atlanta, Georgia 30303 New York, New York 10022
THE CHASE MANHATTAN BANK, N.A. MARINE MIDLAND BANK
One Chase Manhattan Plaza 140 Broadway, 2nd Floor
New York, New York 10081 New York, New York 10005
THE NORTHERN TRUST COMPANY CITIBANK, N.A.
50 South LaSalle Street 399 Park Avenue
Chicago, Illinois 60675 4th Floor
New York, New York 10043
MELLON BANK, N.A. DRESDNER BANK AG,
Three Mellon Bank Center New York Branch
Room 153-2302 75 Wall Street
Pittsburgh, PA 15258 New York, New York 10005
SOCIETE GENERALE WESTPAC BANKING
1221 Avenue of the Americas 575 Fifth Avenue
New York, New York 10020 New York, New York 10017
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
335 Madison Avenue
New York, New York 10017
EXHIBIT C-1
Page 8
ANNEX II
Designated Subsidiaries
1) BBDO Worldwide Inc.
2) BBDO Atlanta, Inc.
3) BBDO Chicago, Inc.
4) BBDO Detroit Inc.
5) The DDB Needham Worldwide Communications Group Inc.
6) DDB Needham Chicago Inc.
7) Rapp Collins Worldwide Inc.
8) Alcone Marketing Group Inc.
9) Tracy-Locke, Inc.
10) Frank J. Corbett, Inc.
11) Kallir, Philips, Ross, Inc.
12) Thomas A. Schutz Co., Inc.
EXHIBIT C-2
FORM OF OPINION OF COUNSEL (NEW YORK) - BANKS
May __, 1996
To the Banks party to the
Credit Agreement referred to
below and ABN AMRO Bank, N.V.,
New York Branch,
as Letter of Credit Issuer and
as Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to ABN AMRO Bank, N.V., New York
Branch ("ABN AMRO") and The Chase Manhattan Bank (National Association)
("Chase") in connection with (i) the Credit Agreement, dated as of May 10, 1996,
among Omnicom Finance Inc. ("OFI"), Omnicom Finance Ltd. ("OFL" and, together
with OFI, individually, a "Borrower" and collectively the "Borrowers"), the
financial institutions named therein (the "Banks"), ABN AMRO as Swingline Bank,
as Letter of Credit Issuer and 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 6.04 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 on the date hereof; and
(c) the Guaranty of Omnicom Group Inc. (the "Guarantor" and, together with
the Borrowers, the
EXHIBIT C-2
Page 2
"Obligors"), dated as of May 10, 1996 (the "Guaranty").
In addition, we have assumed that the making and performance and the
consummation of the transactions contemplated by the Financing Documents by OFL
do not violate, and the Financing Documents to which OFL 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
(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 OFL) 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 12.01 of the Credit Agreement (and
any similar provisions in any of the other
EXHIBIT C-2
Page 3
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) Sections 3(a) of the Guaranty, and clause (b) of Section 4 of the
Guaranty to the extent that it relates to action contemplated by Section
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, the Swingline Bank or the Letter of Credit
Issuer 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 12.08(a) of the Credit Agreement and the second
sentence of Section 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 Credit Documents, (iii) the waiver of inconvenient forum set forth
in Section 12.08(b) of the Credit Agreement and Section 18 of the Guaranty
with respect to proceedings in the United States District Court for the
Southern District of New York, (iv) the last sentence of Section 12.09 of
the Credit Agreement and the last sentence of Section 19 of the Guaranty or
(v) Section 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
6.04 of the Credit Agreement, provided to you by us in our capacity as special
New York counsel to ABN AMRO and Chase 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) - OFL
May __, 1996
To the Persons Listed on the
Attached Annex I
Ladies and Gentlemen:
We have acted as special New York counsel for Omnicom Finance Inc., a
corporation organized and existing under the laws of Delaware ("OFI"), Omnicom
Finance Limited, a corporation organized and existing under the laws of England
and Wales ("OFL" and together with OFI, individually, a "Borrower" and
collectively, the "Borrowers") and Omnicom Group Inc., a corporation organized
and existing under the laws of New York (the "Guarantor"), in connection with
the execution and delivery of the following documents (collectively, the "Credit
Documents"):
(a) the Credit Agreement, dated as of May 10, 1996, among the
Borrowers, the banks parties thereto (the "Banks"), ABN AMRO Bank N.V., New
York Branch, as Swingline Bank and as Letter of Credit Issuer and ABN AMRO
Bank N.V., New York Branch, as the Administrative Agent (the "Credit
Agreement");
(b) the Notes of OFL, to be delivered pursuant to the Credit
Agreement;
(c) the Guaranty of the Guarantor, dated as of May 10, 1996 (the
"Guaranty");
(d) the Commercial Paper Dealer Agreement dated as of May 10, 1996,
between OFL and Chase Securities Inc. (the "Chase Dealer Agreement") and
the Commercial Paper Dealer Agreement dated as of May 10, 1996, between OFI
and Goldman Sachs Money Markets, L.P. (the "GSMM Dealer Agreement");
(e) the Depositary Agreement, dated as of May 10, 1996, among the
Borrowers, the Depositary, the Administrative Agent and the Letter of
Credit Issuer; and
(f) the Commercial Paper to be issued by OFL in the commercial paper
market pursuant to the Depositary Agreement and backed by the Letter of
Credit.
This opinion is delivered to you pursuant to Section 6.04 of the Credit
Agreement, Section 3(c) of the Chase Dealer
EXHIBIT C-3
Page 2
Agreement and Paragraph 3 of the GSMM Dealer 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 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 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, officers and
representatives of the Borrowers and the Guarantor.
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 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 of 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 the Credit Documents constitute
EXHIBIT C-3
Page 3
the valid and legally binding obligations of each party thereto other than the
Borrowers and the Guarantor.
Furthermore, in giving the opinions expressed 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 OFL is a party, constitutes its
legal, valid and binding obligation enforceable against OFL in accordance with
the terms of such Credit Document.
2. Neither the execution, delivery or performance by OFL 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 (including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System) of the United States of America or the
State of New York or, to the best of our knowledge after due inquiry, any order,
writ, injunction or decree of any court or governmental instrumentality of or in
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
prior to the date hereof), or exemption by, any governmental or public body or
authority of or in the United States of America or the State of New York, 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 OFL is a party or (ii) the enforceability of any such Credit Document
against OFL.
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 OFL in Section 12.08 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 in so far 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.
6. In reliance upon the legal opinion of Milbank, Tweed, Hadley & McCloy,
which states, among other things, that the New York branch of ABN AMRO Bank
N.V., as Letter of Credit Issuer, is subject to regulation and supervision in a
EXHIBIT C-3
Page 4
manner substantially equivalent to that applicable to a state chartered bank
doing business in New York, and assuming that the proceeds of the Commercial
Paper are used for the purpose set forth in the Credit Agreement, Commercial
Paper issued and sold in accordance with the terms of the Credit Agreement and
the Depositary Agreement will be an exempt security under Section 3(a) (2) of
the Securities Act of 1933, as amended, and neither registration of such
Commercial Paper under said Act, nor qualification of an indenture with respect
to such Commercial Paper under the Trust Indenture Act of 1939, as amended, is
required in connection with the offering, issuance, sale or delivery of such
Commercial Paper under the circumstances contemplated by the Depositary
Agreement.
Our opinions are subject to the qualifications that:
A. The enforceability of the Credit Documents is subject to the effect of
any applicable bankruptcy, insolvency, moratorium, reorganization, marshaling or
other similar law or rule of law (whether domestic or foreign) affecting
creditor's rights generally (including such as may deny giving effect to waivers
of debtors' or guarantors' rights), and to the discretionary nature of equitable
remedies.
B. The enforcement of any rights under any of the Credit Documents are in
all cases subject to each party's implied duty of good faith and to general
principles of equity (regardless of whether enforcement is considered in a
proceeding at law or in equity). Consequently, 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.
C. We express no opinion as to the enforceability of any contractual
provision in the Credit Documents relating to indemnification, or waiver of jury
trial, process or other procedural right, to the extent enforcement thereof is
contrary to federal or state securities laws and the public policy underlying
such laws.
D. No opinion is given herein as to:
(i) the enforceability of the powers of attorney granted under Section
2.03(b) of the Credit Agreement, which authorizes and empowers the
Swingline Bank to deliver a Notice of Borrowing to the Administrative
Agent, on behalf of the Borrowers, to the extent that such power of
attorney purports to give the Swingline Bank rights and powers that are not
available to it as a creditor;
EXHIBIT C-3
Page 5
(ii) the enforceability of any right or obligation to the extent that
the same has been varied by course of dealing or performance; or
(iii) the enforceability of the provisions of Section 12.09 of the
Credit Agreement or Section 19 of the Guaranty to the extent that a
non-U.S. dollar judgment is obtained in respect of the Credit Agreement in
a jurisdiction other than the United States of America and the Borrowers or
the Guarantor pay such judgment.
E. Our opinions in paragraph 1 are subject to possible judicial action
giving effect to governmental actions on foreign laws affecting creditor's
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 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.
Moody's Investors Service, Inc., Standard & Poor's Ratings Group, Goldman
Sachs Money Markets, L.P. and Chase Securities, Inc. may rely upon this opinion
as if it were addressed to them. The opinions expressed herein may not be relied
upon in any manner or for any purpose by any other person other than the persons
to which they are addressed.
Very truly yours,
EXHIBIT C-3
Page 6
ANNEX I
UNION BANK OF SWITZERLAND THE FUJI BANK, LIMITED
New York Branch New York Branch
299 Park Avenue Two World Trade Center
33rd Floor 79th Floor
New York, New York 10171 New York, New York 10048
WACHOVIA BANK OF GEORGIA, N.A. ABN AMRO BANK N.V.,
191 Peach Tree Street, N.E. New York Branch
29th Floor 500 Park Avenue
Atlanta, Georgia 30303 New York, New York 10022
THE CHASE MANHATTAN BANK, N.A. MARINE MIDLAND BANK
One Chase Manhattan Plaza 140 Broadway, 2nd Floor
New York, New York 10081 New York, New York 10005
THE NORTHERN TRUST COMPANY CITIBANK, N.A.
50 South LaSalle Street 399 Park Avenue
Chicago, Illinois 60675 4th Floor
New York, New York 10043
MELLON BANK, N.A. DRESDNER BANK AG,
Three Mellon Bank Center New York Branch
Room 153-2302 75 Wall Street
Pittsburgh, PA 15258 New York, New York 10005
SOCIETE GENERALE WESTPAC BANKING
1221 Avenue of the Americas 575 Fifth Avenue
New York, New York 10020 New York, New York 10017
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
335 Madison Avenue
New York, New York 10017
EXHIBIT C-3
Page 7
ANNEX II
Designated Subsidiaries
1) BBDO Worldwide Inc.
2) BBDO Atlanta, Inc.
3) BBDO Chicago, Inc.
4) BBDO Detroit Inc.
5) The DDB Needham Worldwide Communications Group Inc.
6) DDB Needham Chicago Inc.
7) Rapp Collins Worldwide Inc.
8) Alcone Marketing Group Inc.
9) Tracy-Locke, Inc.
10) Frank J. Corbett, Inc.
11) Kallir, Philips, Ross, Inc.
12) Thomas A. Schutz Co., Inc.
EXHIBIT D-1
OMNICOM [FINANCE INC.][FINANCE LIMITED]
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 6.06(a) of the Credit
Agreement, dated as of May 10, 1996 among Omnicom Finance Inc., Omnicom Finance
Limited, the Banks party thereto, and ABN AMRO Bank N.V., New York Branch, as
the maker of Swingline Loans referred to therein, as Letter of Credit Issuer and
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 ___________________(1) (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(2) 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 _______________, 19 _ , together with all amendments
thereto adopted through the date hereof.
- --------
(1) Insert a date prior to the time of any corporate action relating to the
Credit Agreement.
(2) 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-1
Page 2
4. Attached hereto as Exhibit B is a true and correct copy of the By-Laws
of OFI as in effect on _____________(1), 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 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 7 of the Credit Agreement are true and correct, both before and after
giving effect to each Credit Event 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 the Credit Event 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
_______________, 19__.
OMNICOM FINANCE INC.
------------------------------
Name:
Title:
- --------
(1) Insert same date as in paragraph 2 of this certificate.
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
_____________, 19__.
OMNICOM FINANCE INC.
---------------------------
Name:
Title:
EXHIBIT D-2
OMNICOM FINANCE LIMITED
Officers' Certificate
I, the undersigned, __________________________ of Omnicom Finance Limited,
a corporation organized and existing under the laws of England ("OFL"), DO
HEREBY CERTIFY that:
1. This Certificate is furnished pursuant to Section 6.06(a) of the Credit
Agreement, dated as of May 10, 1996 among Omnicom Finance Inc., Omnicom Finance
Limited, the Banks party thereto, and ABN AMRO Bank N.V., New York Branch, as
the maker of Swingline Loans referred to therein, as Letter of Credit Issuer and
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 ___________________(1) (to and including and date hereof)
have been officers of OFL, holding the respective offices below set opposite
their names, and the signatures below set opposite their names are their genuine
signatures.
Name(2) Office Signature
-------- ---------- ---------
-------- ---------- ---------
-------- ---------- ---------
-------- ---------- ---------
3. Attached hereto as Exhibit A is a copy of the Memorandum and Articles of
Association of OFL as in effect on _____________(3), together with all
amendments thereto adopted through the date hereof.
4. Attached hereto as Exhibit B is a true and correct copy of resolutions
duly adopted by the Board of Directors of OFI at a meeting on _____________, at
- --------
(1) Insert a date prior to the time of any corporate action relating to the
Credit Agreement.
(2) 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.
(3) 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 B, no resolutions have been adopted
by the Board of Directors of OFL which deal with the execution, delivery or
performance of any of the Credit Documents.
5. On the date hereof, the representations and warranties of OFL contained
in Section 7 of the Credit Agreement are true and correct, both before and after
giving effect to each Credit Event 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 the Credit Event to occur on the date hereof or
from the application of the proceeds thereof.
7. I know of no proceeding for the dissolution or liquidation of OFL or
threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
_______________, 19__.
OMNICOM FINANCE LIMITED
------------------------------
Name:
Title:
EXHIBIT D-2
Page 3
I, the undersigned, [Secretary/Assistant Secretary] of OMNICOM FINANCE LIMITED
("OFL"), DO HEREBY CERTIFY that:
1. [Insert name of Person making the above certifications] is the duly
elected and qualified __________________ of OFL 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 OFL or
threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
_____________, 19__.
OMNICOM FINANCE LIMITED
---------------------------
Name:
Title:
EXHIBIT D-3
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 6.06(b) of the Credit
Agreement, dated as of May 10, 1996 among Omnicom Finance Inc. and Omnicom
Finance Limited (the "Borrowers"), the Banks party thereto and ABN AMRO Bank
N.V., New York Branch, as the maker of Swingline Loans referred to therein, as
Letter of Credit Issuer and 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 ___________________(1) (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(2) 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 ____________________, 19__, together with all
amendments thereto adopted through the date hereof.
- --------
(1) Insert a date prior to the time of any corporate action relating to the
Guaranty.
(2) 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-3
Page 2
4. Attached hereto as Exhibit B is a true and correct copy of the By-Laws
of the Guarantor as in effect on ___________(1), 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 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 Credit Event 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 the Credit Event 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
_______________, 19__.
OMNICOM GROUP INC.
By______________________
Name:
Title:
- --------
(1) Insert same date as in paragraph 2 of this certificate.
EXHIBIT D-3
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
_____________, 19__.
OMNICOM GROUP INC.
By_____________________________
Name:
Title:
EXHIBIT E
ABN AMRO Bank N.V.
New York Branch
500 Park Avenue
New York, New York 10022
as of May 10, 1996
PARTICIPATION AGREEMENT
To Each of the Banks listed
on Annex A hereto (each a
"Participant" and collectively,
the "Participants"):
We and you, in our individual capacities, are each party to a Credit
Agreement (as modified, supplemented or amended from time to time, the "Credit
Agreement") dated as of May 10, 1996 among Omnicom Finance Inc. and Omnicom
Finance Limited (the "Borrowers"), each of the banks named therein (the "Banks")
and ABN AMRO Bank N.V., New York Branch, as the maker of Swingline Loans
referred to therein, as Letter of Credit Issuer and as Administrative Agent,
pursuant to which we agree, in our capacity as Letter of Credit Issuer, to
issue, subject to the fulfillment of certain conditions precedent, a Letter of
Credit, by order and for account of the Borrowers in support of the obligations
of the Borrowers as more fully set forth in the Credit Agreement in a Stated
Amount (all capitalized terms defined in the Credit Agreement and not defined
herein are used herein as so defined) equal to the Total Letter of Credit
Commitment.
This Participation Agreement will confirm the arrangement between us
whereby we agree to grant, and you agree to acquire, a participation in the
Letter of Credit issued by us pursuant to the Credit Agreement and in certain
Drawings made thereunder ("your participation"), which participation shall be
based upon whether Drawings (and any Unpaid Drawings resulting therefrom) under
the Letter of Credit are made in respect of Tranche A Commercial Paper or
Tranche B Commercial Paper, with each of you participating in Drawings and
Unpaid Drawings in respect of Tranche A Commercial Paper in the percentage (if
any) set forth opposite your name on Annex A hereto under the heading "Tranche A
Participation Percentage" and each of you participating in Drawings and Unpaid
Drawings in respect of Tranche B Commercial Paper in the percentage (if any) set
forth opposite your name on Annex A hereto under the heading "Tranche B
Participation Percentage", in each case on the following terms and conditions:
(1) Promptly upon the occurrence of any Unpaid Drawing in respect of any
Tranche in which you are participating (including the failure by the relevant
Borrower to reimburse us in full for any Drawing in respect of such Tranche)
under the Letter of Credit, we shall advise you thereof and you shall promptly
EXHIBIT E
Page 2
pay to us the amount of your participation in such Unpaid Drawing by
transferring the same to us, in Dollars and immediately available funds, at the
Administrative Agent's Account. To the extent you are unable to effect such
transfer on the date of such advice, you agree to pay interest to us on such
amount until such transfer is effected at the overnight Federal Funds rate for
the next succeeding Business Day and thereafter at the Base Rate plus 2% Per
annum.
(2) Provided you shall have made all payments to us required by this
Participation Agreement, we shall transfer to you at your address and to the
attention specified in Schedule II to the Credit Agreement your proportionate
share of all payments received by us in respect of Unpaid Drawings of any
Tranche in which you are participating, whether received from the relevant
Borrower, from the Guarantor pursuant to the Guaranty or otherwise, in each case
as to which your participation hereunder is entitled, all as and, to the extent
possible, when we receive them and in the same funds in which such amounts are
received.
(3) If (i) we shall pay any amount to you pursuant to this Participation
Agreement in the belief or expectation that a related payment has been or will
be received or collected from the relevant Borrower and (ii) such related
payment is not received or collected by us, then you will promptly on demand by
us return such amount to us, together with interest thereon, at such rate as we
shall determine to be customary between banks for correction of errors. If we
determine at any time that any amount received or collected by us in respect of
or pursuant to the Credit Agreement or the Guaranty, must be returned to the
relevant Borrower or the Guarantor or paid to any other person or entity
pursuant to any insolvency law or otherwise, then, notwithstanding any other
provision of this Participation Agreement, we shall not be required to
distribute any portion thereof to you, and you will promptly on demand by us
repay to us any portion thereof that we shall have theretofore distributed to
you, together with interest thereon at such rate, if any, as we shall pay to the
relevant Borrower, the Guarantor or other such Person or entity with respect
thereto.
(4) You hereby acknowledge that certain rights have been granted to you as
a Participant pursuant to the terms of the Credit Agreement, and you hereby
agree to perform and be bound by the terms of the Credit Agreement to the extent
applicable to you by reason of your participation acquired hereunder.
(5) It is understood that we will exercise and give the same degree of care
and attention to the administration of the Letter of Credit as we give to our
other letters of credit and similar obligations, and that our sole liability to
you shall be to distribute promptly, as and when received by us, as stated in
Paragraph 2 hereof, your proportionate share of any payment of unpaid Drawings
in respect of a Tranche in which you are participating which we may receive, and
beyond this, except as expressly provided herein, no other responsibility is
assumed. It is further understood that: (i) we may use our sole discretion with
EXHIBIT E
Page 3
respect to exercising or refraining from exercising any right to taking or
refraining from taking any actions which may be vested in us or which we may be
entitled to take or assert under the Credit Documents; and (ii) we shall not,
absent gross negligence or willful misconduct, be under any liability to you
with respect to anything which we may do or refrain from doing in the exercise
of our best judgment or which may seem to us to be necessary or desirable.
Without in any way limiting the foregoing, we may rely upon the advice of
counsel concerning legal matters and upon any written communication or any
telephone conversation which we believe to be genuine and correct or to have
been signed, sent or made by the proper person and shall not be required to make
any inquiry concerning the performance by the Borrowers or any other obligor of
any of its obligations and liabilities under or in respect of the Credit
Documents. We shall have no obligations to make any claim, or assert any lien
upon any property held by us or assert any offset thereagainst. We may accept
deposits from, make loans or otherwise extend credit to, and generally engage in
any kind of banking or trust business with the Borrowers or any other Person
obligated under the Credit Documents or in respect of any document referred to
therein and receive payment in such loans or extensions of credit and otherwise
act with respect thereto freely and without accountability in the same manner as
if this Participation Agreement and the transactions contemplated thereby were
not in effect.
(6) You acknowledge that in addition to your participation in the Letter of
Credit issued by us and in Drawings and Unpaid Drawings thereunder in respect of
each Tranche of Commercial Paper, the other Participants are participating
therein in various percentages of each Tranche, which percentages when added to
the percentage (if any) which we are retaining for ourselves aggregate 100% of
each Tranche. You agree that you shall have no right of action or claim
whatsoever against us as a result of our exercising or refraining from
exercising any right or taking or refraining from taking any actions which may
be vested in us or which we may be entitled to take or assert under the Credit
Documents with respect to the Letter of Credit, other than rights of action or
claims resulting solely from our gross negligence or willful misconduct.
(7) We make no representation and shall have no responsibility with respect
to: (i) the genuineness, legality, validity, binding effect or enforceability of
any of the Credit Documents; (ii) the truthfulness and accuracy of any of the
representations contained in the Credit Documents; (iii) the filing, recording
or taking (other than as expressly required by the Credit Documents) of any
action with respect to any of the Credit Documents; (iv) the collectibility of
any Unpaid Drawing; and/or (v) the financial condition of the Borrowers, the
Guarantor or of any other Person.
(8) Subject to the following sentence, you may grant or sell participations
in your participation hereunder. To the extent you so grant a participation to
EXHIBIT E
Page 4
another Person, (x) such Person shall not be a "Participant" within the meaning
of the Credit Agreement; (y) unless expressly agreed to in writing by us, you
shall not be relieved of your obligations hereunder by reason of such
disposition or grant and we shall incur no liability or responsibility to such
subparticipant; and (z) after any such grant of participation by any of you, the
exercise of your rights and remedies hereunder, under the Credit Agreement, the
Guaranty and your Note shall not be subject to the consent of the respective
purchaser of a participation, other than any such exercise which would (a)
increase the amount of your Commitment, (b) reduce the principal of, or interest
on, your Note, or any fees or other amounts payable hereunder or under the
Credit Agreement or the Guaranty, or (c) postpone any date fixed for any payment
of principal of, or interest on, your Note, or any fees or other amounts payable
hereunder or under the Credit Agreement or the Guaranty. Promptly following any
such participation granted or sold by you, you shall notify the Borrowers
thereof. You represent, and in granting this participation to you it is
specifically understood and agreed, that you are acquiring your participation in
the Letter of Credit and in Drawings made thereunder for your own account in the
ordinary course of your business and not with a view to or for sale in
connection with, any distribution thereof.
(9) To the extent that we are not reimbursed by the relevant Borrower under
the Credit Agreement you will reimburse us on demand, in proportion to your
various percentages used in determining the Required Banks under and as defined
in the Credit Agreement 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 any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against us, in any way relating to or arising out of the Letter of
Credit or any action taken or omitted by either of us under any of the Credit
Documents with respect thereto; provided, however, that you shall not be liable
to us for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from our gross negligence or willful misconduct. Your obligations under this
Paragraph 9 shall survive the termination of the Credit Documents and this
Participation Agreement and the payment of all Unpaid Drawings.
(10) We shall have no duties or responsibilities to you except as expressly
set forth herein. We shall not have by reason hereof a fiduciary relationship
with respect to you, and nothing herein, express or implied, is intended to or
shall be so construed as to impose upon us any obligations in respect of the
Credit Documents, except as expressly set forth therein or herein, or in respect
of the Letter of Credit. You agree to be bound by all our determinations
(including, without limitations, those made in respect of conflicting
instructions received in respect of the Credit Documents) made in connection
EXHIBIT E
Page 5
therewith so long as such determinations are made in the absence of gross
negligence or willful misconduct. Independently and without reliance upon us,
you, to the extent you deem it appropriate, have made and shall continue to make
your own independent investigation and appraisal of the financial condition and
affairs of the Borrowers and the Guarantor in connection with their respective
obligations under the Credit Documents; and except as expressly provided herein,
we shall not have any duty or responsibility, either initially or on a
continuing basis, to provide you with any credit or other information with
respect to the Credit Documents, whether coming into our possession prior to the
date hereof or at any time or times thereafter.
(11) Except as otherwise expressly provided herein, all notices, requests,
demands and other communications hereunder shall be given in the manner provided
in the Credit Agreement.
(12) This Participation Agreement may not be changed orally, but only by a
writing signed by the party against whom enforcement of such change is sought.
(13) This Participation Agreement and our respective rights and obligations
shall be construed in accordance with and governed by the laws of the State of
New York.
(14) You agree that if you should receive any amount (whether by setoff or
otherwise) in respect of your participation other than pursuant to Section 2.10
of the Credit Agreement or from us pursuant to Paragraph 2 hereof, you will
remit all of same to us to the extent required by Section 12.06 of the Credit
Agreement, and we will further distribute to you and all other Participants the
amounts required pursuant to Paragraph 2 hereof, and your participation shall be
adjusted to reflect such remittance. We acknowledge that your agreement to share
amounts pursuant to this Paragraph 14 is given on the understanding that there
is a mutual obligation on our part to share such amounts.
(15) This Participation 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 constitute one and the same instrument. A complete set of counterparts
shall be lodged with us and each of you.
If the foregoing correctly sets forth the arrangement between us, please
indicate your confirmation thereof and your acceptance of the participation
EXHIBIT E
Page 6
hereby offered by signing and returning to us the enclosed copy of this
Participation Agreement.
Very truly yours,
ABN AMRO BANK N.V., NEW YORK BRANCH
By______________________________
Title:
By_______________________________
Title:
Confirmed and accepted as of the date first above written.
THE CHASE MANHATTAN BANK, N.A.
By___________________________
Title:
THE NORTHERN TRUST COMPANY
By_____________________________
Title:
SOCIETE GENERALE
By_____________________________
Title:
ABN AMRO BANK N.V., NEW YORK BRANCH
By_____________________________
Title:
By_____________________________
Title:
CITIBANK, N.A.
By_____________________________
Title:
EXHIBIT E
Page 7
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By_____________________________
Title:
By_____________________________
Title:
MARINE MIDLAND BANK
By_____________________________
Title:
BANK OF AMERICA NT&SA
By_____________________________
Title:
THE FUJI BANK, LIMITED
By_____________________________
Title:
MELLON BANK, N.A.
By_____________________________
Title:
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By_____________________________
Title:
By_____________________________
Title:
WACHOVIA BANK OF GEORGIA, N.A.
By_____________________________
Title:
WESTPAC BANKING CORPORATION
By_____________________________
Title:
ANNEX A
to
Exhibit E
PARTICIPATION PERCENTAGES
TRANCHE A TRANCHE B
PARTICIPATION PARTICIPATION
NAME OF BANK PERCENTAGE PERCENTAGE
- ------------ ------------- -------------
THE CHASE MANHATTAN BANK,
N.A. 0% 100%
ABN AMRO BANK N.V.,
NEW YORK BRANCH 12.5% 0%
BANK OF AMERICA NT&SA 12.5% 0%
THE NORTHERN TRUST COMPANY 10.9% 0%
MARINE MIDLAND BANK, N.A. 9.4% 0%
MELLON BANK, N.A. 9.4% 0%
DRESDNER BANK AG,
NEW YORK AND GRAND
CAYMAN BRANCHES 7.8% 0%
CITIBANK, N.A. 6.25% 0%
THE FUJI BANK, LIMITED 6.25% 0%
SOCIETE GENERALE 6.25% 0%
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH 6.25% 0%
WESTPAC BANKING CORPORATION 6.25% 0%
WACHOVIA BANK OF GEORGIA,
N.A. 6.25% 0%
------
TOTAL: 100% 100%
------ -------
EXHIBIT F
IRREVOCABLE LETTER OF CREDIT
ABN AMRO BANK N.V.
NEW YORK BRANCH
500 PARK AVENUE
NEW YORK, NEW YORK 10022
___________, 19_
Irrevocable Letter of Credit No. ____
Citibank, N.A.
120 Wall Street
13th Floor
New York, New York 10043
Attention: Commercial Paper Client Services
Ladies and Gentlemen:
At the request and on the instructions of our customers, Omnicom Finance
Inc. ("OFI") and Omnicom Finance Limited ("OFL" and, together with OFI, the
"Companies"), we (the "Bank") hereby establish in your favor this irrevocable
Letter of Credit in the amount of [insert Stated Amount] (hereinafter called the
"Stated Amount"). This Letter of Credit is issued to you for the benefit of the
holders of promissory notes (and only those notes) of the Companies (the
"Commercial Paper Notes") issued, authenticated and delivered by you as Issuing
Agent pursuant to that certain Depositary Agreement dated as of May 10, 1996 to
which OFI, OFL and you are parties and to which we are a consenting party (the
"Depositary Agreement"). Each Commercial Paper Note issued, authenticated and
delivered by you under the Depositary Agreement shall be entitled to the
benefits of this Letter of Credit, provided that such Commercial Paper Note is
presented at your offices no later than the close of business of your Corporate
Trust Department on the 15th day following the stated maturity date of such
Commercial Paper Note (or, if such 15th day shall not be a Business Day, on the
next Business Day following such date).
Subject to the further provisions of this Letter of Credit, demands for
payment may be made by you from time to time hereunder by presentation to us, at
the Letter of Credit Department at our office located at 500 Park Avenue, New
York, New York 10022, Attention: Standby Letter of Credit Department or at such
other office in the City and State of New York as we may designate by written
notice delivered to you, of your certificate on your letterhead in the form of
Annex A hereto (a "Drawing Certificate").
Demand for payment may be made by you under this Letter of Credit at any
time during our business hours at our aforesaid address on a Business Day (as
hereinafter defined). If demand for payment is made by you hereunder on any
Business Day and provided that such demand for payment and the documents
EXHIBIT F
Page 2
presented in connection therewith conform to the terms and conditions hereof,
payment shall be made to you of the amount demanded, in immediately available
funds, prior to 1:00 P.M. (New York time) on the same Business Day (if such
demand is received at or prior to 10:00 A.M. (New York time)) or prior to 1:00
P.M. (New York time) on the next following Business Day (if such demand is
received after 10:00 A.M. (New York time)), by our depositing such funds in the
special account no. 4066-8021, the "L/C Account") maintained by the Bank at your
office specified above. Only funds consisting of the general funds of the Bank
shall be deposited in the L/C Account.
Demand for payment hereunder honored by us shall not exceed the Stated
Amount, as the Stated Amount may have been reinstated by us as in this paragraph
provided. Subject to the preceding sentence, each drawing honored by us
hereunder shall pro tanto reduce the Stated Amount, it being understood that
after the effectiveness of any such reduction, you shall no longer have any
right to make a drawing hereunder in respect of the amount so reduced. Upon
repayment to us in full by either Company of amounts drawn hereunder, the Stated
Amount shall automatically be reinstated by an amount equal to such drawing.
If a Drawing Certificate presented by you hereunder does not, in any
instance, conform to the terms and conditions of this Letter of Credit, we shall
give you prompt notice that presentation was not effected in accordance with the
terms and conditions of this Letter of Credit, stating the reasons therefor and
that we are holding such Drawing Certificate at your disposal. Partial drawings
are permitted under this Letter of Credit.
This Letter of Credit shall expire at our close of business at our
aforesaid address on the earlier to occur of the following dates: (i) June 30,
2001, or (ii) the date on which this Letter of Credit is surrendered by you to
us in accordance with Section 3.01 of the Credit Agreement referred to in the
Depositary Agreement. This Letter of Credit shall be promptly surrendered to us
by you upon any expiration pursuant to the preceding sentence. As used herein
the term "Business Day" means a day on which the Depositary is open for business
and on which we are open for the purpose of conducting our commercial banking
business.
This Letter of Credit is transferable in its entirety (but not in part) to
the extent of the then available Stated Amount hereunder, to any transferee who
has succeeded you as Depositary under the Depositary Agreements, and may be so
successively transferred. Transfer of the available drawings under this Letter
of Credit shall be effected by presentation to us of this Letter of Credit,
accompanied by a certificate in the form of Annex B hereto attached, with the
blanks therein completed in accordance with this Letter of Credit. Upon such
presentation, we shall forthwith issue an irrevocable Letter of Credit in favor
of such transferee in the form of this Letter of Credit, except that the amount
available under such Letter of Credit shall be the then available Stated Amount.
EXHIBIT F
Page 3
All documents presented to us in connection with any demand for payment
hereunder, as well as all notices and other communications to us in respect of
this Letter of Credit, shall be in writing and addressed and presented to us at
our aforesaid address (including by way of facsimile at (212) 759-8916 or such
other number as we shall notify you of in writing) and shall make specific
reference to this Letter of Credit by number. Such documents, notices and other
communications shall be personally delivered to us (including by way of
facsimile as set forth in the preceding sentence), and marked "Urgent -- For
Immediate Delivery".
This Letter of Credit, except as otherwise expressly stated herein, is not
transferable and, except as otherwise expressly stated herein, is subject to the
Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce, Publication No. 500 (the "Uniform Customs").
This Letter of Credit shall be deemed to be a contract made under the laws of
the State of New York and shall, as to matters not governed by the Uniform
Customs, be governed by and construed in accordance with the laws of said State.
Very truly yours,
ABN AMRO BANK N.V.
NEW YORK BRANCH
By___________________________
Title:
By____________________________
Title:
ANNEX A
to
Letter of Credit
The undersigned, a duly authorized officer of Citibank N.A., does hereby
certify that:
1. Citibank, N.A. as fiduciary under the Depositary Agreements for the
holders of the below-mentioned promissory notes (the "Commercial Paper Notes"),
is making demand for payment in accordance with Letter of Credit No.
_______________ dated _____________, 19__ (the "Letter of Credit") issued by ABN
AMRO Bank N.V., New York Branch (the "Bank") to pay the Commercial Paper Notes
of [Omnicom Finance Inc./Omnicom Finance Limited] (the "Company"), which
Commercial Paper Notes were issued, authenticated and delivered by Citibank
N.A., under and in accordance with the Depositary Agreement referred to in the
Letter of Credit. The amount of the Commercial Paper Notes payable at maturity
is referred to herein as the "Face Amount" of such Commercial Paper Notes.
2. The serial number, the date of issuance, the stated maturity date and
the Face Amount of each Commercial Paper Note with respect to which demand for
payment is being made hereunder are set forth in Schedule I attached hereto.
Also set forth on Schedule I attached hereto for each such Commercial Paper Note
is whether such Commercial Paper Note is a Tranche A Commercial Paper Note or a
Tranche B Commercial Paper Note.
3. Each Commercial Paper Note described in paragraph 2 above is scheduled
to mature on the Business Day next following the date hereof or has matured on
or prior to the date hereof, provided that, with respect to each such Commercial
Paper Note that matured on or prior to the date hereof, no amount has previously
been demanded by Citibank, N.A. under the Letter of Credit.
4. The aggregate amount which is, or will on the next Business Day be,
owing on account of the Face Amount of Commercial Paper Note or Commercial Paper
Notes equals the total such amount specified on Schedule I attached hereto.
5. Demand for payment of such aggregate amount is made upon the Bank as
issuer of the Letter of Credit.
6. Please deposit the proceeds of the payment hereby demanded into account
number 4066-8021 at the Bank at 500 Park Avenue, New York, New York 10022.
Following such deposit, Citibank, N.A. will apply the same directly to the
payment of the balance owing on account of such Commercial Paper Notes upon or
after their maturity, provided that Citibank, N.A. shall not pay any Commercial
Paper Note with funds deposited in the L/C Account until such Commercial Paper
Note is actually presented for payment, and at such time will only pay such
Commercial Paper Note with such funds if it is then entitled to the benefits of
the Letter of Credit. On the first Business Day upon which a Commercial Paper
Note described in paragraph 2 above is no longer entitled to the benefits of the
Letter of Credit, Citibank, N.A. shall, if such Commercial Paper Note was not
ANNEX A
Page 2
presented to Citibank, N.A. for payment while entitled to the benefits of the
Letter of Credit, pay the amount deposited by the Bank in the L/C Account in
respect of such Commercial Paper Note, to the Bank as required by Section 1 of
the Depositary Agreement. Except as provided above, no funds drawn by Citibank,
N.A. under the Letter of Credit to pay any Commercial Paper Note or Commercial
Paper Notes shall be removed or transferred by Citibank, N.A. from the L/C
Account or applied by it for any purpose other than to pay such Commercial Paper
Note or Commercial Paper Notes.
7. Following its payment of any Commercial Paper Note described in
paragraph 2 above with funds in the L/C Account, Citibank, N.A. will deliver by
hand to the Bank or in accordance with its instructions such Commercial Paper
Note.
IN WITNESS WHEREOF, the undersigned has executed this certificate on
____________, 19__.
CITIBANK, N.A.
By________________________________
Title:
Attachment
SCHEDULE I
Serial Number
of Commercial Date of Stated
Paper Note[s] Issuance Face Amount Maturity Date Tranche
- ------------- -------- ----------- ------------- -------
[List in tabular form required information for each Note]
ANNEX B
to
Letter of Credit
INSTRUCTION TO TRANSFER LETTER OF CREDIT
______________, 19_
Irrevocable Letter of Credit No. _________
ABN AMRO BANK N.V.,
New York Branch
500 Park Avenue
New York, New York 10022
Attention: Letter of Credit Department
Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
___________________________________
(Name of Transferee)
___________________________________
(Address)
all rights of the undersigned beneficiary to draw under the above Letter of
Credit (the "Letter of Credit") in its entirety.
By this transfer, all rights of the undersigned beneficiary in the Letter
of Credit are transferred to the transferee and the transferee shall hereafter
have the sole rights as beneficiary thereof; provided, however, that no rights
shall be transferred to a transferee unless such transfer complies with the
requirements of the Letter of Credit pertaining to transfers.
ANNEX B
Page 2
The Letter of Credit is returned herewith and in accordance therewith we
ask you to issue a new irrevocable letter of credit in favor of the transferee
containing the same terms and provisions as the Letter of Credit except that the
amount available under the new letter of credit will be the then available
Stated Amount under the Letter of Credit, subject to reduction in accordance
with the terms thereof.
Very truly yours,
_______________, as Depositary
By___________________
EXHIBIT G
OMNICOM [FINANCE INC.] [FINANCE LIMITED]
PROMISSORY NOTE
_______________, 19__
$ No.
On, ________________, for value received, OMNICOM [FINANCE INC.][FINANCE
LIMITED] (the "Maker"), promises to pay to the order of "BEARER"(1)
_______________________.(2)
PAYABLE IN LEGAL TENDER OF THE UNITED STATED OF AMERICA FOR PAYMENT OF PUBLIC
AND PRIVATE DEBTS AT NAME OF [ADDRESS OF PAYING Agent].
This Note is entitled to the benefits of an irrevocable Letter of Credit issued
to Citibank, N.A. as fiduciary, by ABN AMRO Bank N.V., New York Branch. Only
Citibank N.A. as fiduciary, may draw under the Letter of Credit. To receive such
benefits, this Note must be presented at the above office of Citibank, N.A. not
later than the close of business of its [Corporate Trust Department] on the 15th
day following the above stated maturity date (or if such 15th day shall not be a
Business Day, on the next Business Day following such date). As used herein, the
term "Business Day" means a day on which the office specified in this Note as
the place of payment of this Note is open for business, on which the [Corporate
Trust Department] of Citibank, N.A. is open for business and on which ABN AMRO
Bank N.V., New York Branch, is open for the purpose of conducting its commercial
banking business. Copies of the Letter of Credit and the related credit
documents are available for inspection at such office. This Note shall be
governed and construed in accordance with the laws of the State of New York.
This Note is not valid unless countersigned by Citibank, N.A.
OMNICOM [FINANCE INC.][FINANCE
LIMITED]
By____________________________
Authorized Signature
Countersigned:
Citibank, N.A.
as Issuing Agent
By____________________________
Authorized Signature
- --------
(1) If registered, cross out "Bearer" and insert name of payee.
(2) Insert amount in words.
EXHIBIT H
DEPOSITARY AGREEMENT
Dated as of May [__], 1996
Citibank, N.A.
120 Wall Street
13th Floor
New York, New York 10043
Attention: Issuance Agency Department
Re: Omnicom Finance Inc. and Omnicom Finance Limited
Commercial Paper Notes
----------------------
Ladies and Gentlemen:
This will confirm the arrangements made with you by the undersigned,
Omnicom Finance Inc. ("OFI") and Omnicom Finance Limited ("OFL" and with OFI,
each, a "Company" and together, the "Companies"), whereby you have agreed to act
as Issuing and Payment Agent on behalf of the Companies in connection with the
issuance and payment of certain commercial paper of the Companies which may be
sold in the U.S. commercial paper market and which is entitled to the benefits
of the Letter of Credit referred to below (the "Commercial Paper"; such
Commercial Paper when issued in book-entry form being hereinafter referred to as
"Commercial Paper Obligations" and when issued in the form of certified
promissory notes being hereinafter referred to as the "Commercial Paper Notes"),
and as Depositary for safekeeping of the Commercial Paper Notes, and as
fiduciary to undertake certain fiduciary obligations as described below on
behalf of holders of Commercial Paper. This Depositary Agreement is sometimes
hereinafter referred to as "this Agreement" and with respect to OFI will replace
the Second Amended and Restated Depositary Agreement dated as of August 2, 1988,
amended and restated as of July 15, 1994 and further amended and restated as of
March 21, 1995 between OFI and you.
The Commercial Paper Notes to be issued, if any, will be issued on the
terms and subject to the conditions set forth herein pursuant to that certain
Credit Agreement dated as of May 10, 1996 (as further amended, modified or
supplemented from time to time, the "Credit Agreement") among the Companies, the
banks named therein and ABN AMRO Bank N.V., New York Branch, in its capacity as
issuer of the hereinafter described Letter of Credit (in such capacity, the
"Letter of Credit Issuer"), as the maker of Swingline Loans referred to therein,
and as Administrative Agent (in such capacity, the "Administrative Agent"), and
will be entitled to the benefits of irrevocable letter of credit issued by the
Letter of Credit Issuer to you, in trust for the holders of Commercial Paper
sold by the Companies, pursuant to the Credit Agreement. Any letter of credit so
EXHIBIT H
Page 2
issued by the Letter of Credit Issuer at the time outstanding is herein
sometimes called the "Letter of Credit".
Commercial Paper Obligations may be issued and delivered, the payment of
the proceeds of such issuance may be made, and presentation and payment of
Commercial Paper Obligations may be made, through the Depositary Trust Company
("DTC") in accordance with the Letter of Representations dated the date hereof
from the Companies and the Depositary to DTC, as amended or supplemented from
time to time (together with the DTC Commercial Paper Issuing/Payment Agency
Manual and the other documents referred to therein, the "DTC Documents"). In
order to evidence the Commercial Paper Obligations so issued through DTC, the
Depositary is hereby authorized and directed to deliver the Master Note (as
defined in Section 2 hereof).
A fully executed counterpart of the Credit Agreement has been delivered to
you herewith, and reference is made to the provisions thereof for the terms upon
which Commercial Paper may be issued and sold by the Companies.
Contemporaneously with the Closing Date under the Credit Agreement, the Letter
of Credit initially issued by Swiss Bank Corporation to you under the Amended
and Restated Credit Agreement dated as of July 15, 1994 among OFI, Swiss Bank
Corporation and various banks, shall be cancelled and a new Letter of Credit
shall be issued and delivered to you. In your capacity as Depositary, Issuing
and Paying Agent and fiduciary, you shall have no liability to the Companies for
the performance of any of the terms of the Credit Agreement.
This Agreement and the DTC documents will govern your rights, powers and
duties as such Depositary, Issuing and Paying Agent and fiduciary with respect
to the Commercial Paper issued pursuant to this Agreement or the DTC documents.
Unless otherwise defined herein, capitalized terms used herein have the meanings
assigned to such terms in the Credit Agreement. When used herein, the term
"Business Day" means a day on which your office located at 111 Wall Street, 5th
Floor Window, New York, New York 10043 (your "Payment Office") is open for
business, and on which the Letter of Credit Issuer and the Administrative Agent
are each open for the purpose of conducting its commercial banking business.
1. Establishment of Accounts. Contemporaneously with the execution and
delivery by the Companies of this Agreement, and for the purposes of this
Agreement and the Credit Agreement, you shall establish at your aforesaid office
two accounts in respect of Commercial Paper issued by OFI (each, an "OFI
Commercial Paper Account"), Account No. 102426 (OFI-Tranche A CP Account) and
Account No. 102427 (OFL-Tranche B CP Account), and two accounts in respect of
Commercial Paper issued by OFL (each, an "OFL Commercial Paper Account" and,
together with the OFI Commercial Paper Accounts, the "Commercial Paper
EXHIBIT H
Page 3
Accounts"), Account No. 102626 (OFL-Tranche A CP Account) and Account No. 102627
(OFL-Tranche B CP Account). All proceeds of the sale of Tranche A Commercial
Paper issued by you as Issuing Agent hereunder on behalf of OFI shall be
deposited by you in the above-referenced OFI Tranche A CP Account, all proceeds
of the sale of Tranche B Commercial Paper issued by you as Issuing Agent
hereunder on behalf of OFI shall be deposited by you in the above-referenced OFI
Tranche B CP Account, all proceeds of the sale of Tranche A Commercial Paper
issued by you as Issuing Agent hereunder on behalf of OFL shall be deposited in
the above-referenced OFL Tranche A CP Account and all proceeds of the sale of
Tranche B Commercial Paper issued by you as Issuing Agent hereunder on behalf of
OFL shall be deposited by you in the above-referenced OFL Tranche B CP Account.
The Companies shall have no legal, equitable or beneficial interest in any
Commercial Paper Account or in the L/C Account referred to below.
Contemporaneously with the execution and delivery of this Agreement and for
the purposes of this Agreement, you shall establish at your aforesaid office an
account, Account No. 4066- 8021 (OFI/OFL-L/C Account) (the "L/C Account") from
which payments to you of amounts drawn under the Letter of Credit with respect
to Commercial Paper issued by OFI or OFL shall be made. The L/C Account shall be
comprised of a subaccount in respect of Tranche A Commercial Paper issued by OFI
(the "OFI Tranche A L/C Subaccount"), a subaccount in respect of Tranche B
Commercial Paper issued by OFI (the "OFI Tranche B L/C Subaccount" and, together
with the OFI Tranche A L/C Subaccount, the "OFI L/C Subaccounts"), a subaccount
in respect of Tranche A Commercial Paper issued by OFL (the "OFL Tranche A L/C
Subaccount") and a subaccount in respect of Tranche B Commercial Paper issued by
OFL (the "OFL Tranche B L/C Subaccount" and, together with the OFL Tranche A L/C
Subaccount, the "OFL L/C Subaccounts"; the OFI L/C Subaccounts and the "OFL L/C
Subaccounts being referred to herein as the "L/C Subaccounts"). You shall (a)
deposit the proceeds of drawings under the Letter of Credit in respect of
Tranche A Commercial Paper issued by OFI into the OFI Tranche A L/C Subaccount,
(b) deposit the proceeds of drawings under the Letter of Credit in respect of
Tranche B Commercial Paper issued by OFI into the OFI Tranche B L/C Subaccount,
(c) deposit the proceeds of drawings under the Letter of Credit in respect of
Tranche A Commercial Paper issued by OFL into the OFL Tranche A L/C Subaccount
and (d) deposit the proceeds of drawings under the Letter of Credit in respect
of Tranche B Commercial Paper issued by OFL into the OFL Tranche B L/C
Subaccount. Only funds consisting of the general funds of the Letter of Credit
Issuer and representing drawings under the Letter of Credit with respect to
Commercial Paper issued by OFI or OFL shall be deposited in the L/C Account or
any Subaccount thereof. It is hereby agreed that the Companies shall have no
right, title or interest in the L/C Account. You are hereby instructed to
deliver to the Letter of Credit Issuer, not earlier than 2:30 p.m., New York
City time, on the Business Day preceding each date on which Commercial Paper
EXHIBIT H
Page 4
is scheduled to mature but prior to 10:00 a.m., New York City time, on each day
on which Commercial Paper is scheduled to mature, a duly completed drawing
certificate in the form of Annex A to the Letter of Credit in respect of all
Commercial Paper scheduled to mature on such day. You are hereby instructed upon
the presentation to you for payment of any Commercial Paper of either Company,
to the extent that such Commercial Paper is still then entitled to the benefits
of the Letter of Credit by the terms of such Commercial Paper, to make such
payment by debiting the corresponding L/C Subaccount in the amount of such
payment. You shall debit the corresponding L/C Subaccount to make such payment,
the Letter of Credit Issuer hereby agreeing to fund the appropriate L/C
Subaccount on the Business Day for which you have delivered a drawing
certificate pursuant to, and in accordance with, the terms of the Letter of
Credit. Upon the first Business Day upon which Commercial Paper of either
Company with respect to which a Drawing was made under the Letter of Credit is
no longer entitled to the benefits of the Letter of Credit, the Depositary
shall, if such Commercial Paper was not presented to the Depositary for payment
while entitled to the benefits of the Letter of Credit, pay the amount deposited
by the Letter of Credit Issuer in the corresponding L/C Subaccount in respect of
such Commercial Paper to the Letter of Credit Issuer in accordance with Section
3.03(d) of the Credit Agreement.
2. Master Note: Notes Delivered for Safekeeping. The Depositary is hereby
authorized to hold, or to deliver to DTC or to the order of DTC, a discount
master note in the form of Exhibit A hereto (the "Master Note"), registered in
the name of Cede & Co. or registered assigns, evidencing Commercial Paper
Obligations which may be issued and outstanding from time to time during the
term of this Agreement. The Depositary is also authorized to take such
additional actions, including entering into commitments or agreements with DTC,
and to give such instructions to DTC as the Depositary may deem desirable in
connection with the issuance, recording and payment of any Commercial Paper
Obligations.
From time to time during the term of this Agreement the Companies may
deliver to your Commercial Paper Issuance Department Commercial Paper Notes in
substantially the form of Exhibit G to the Credit Agreement, which shall be
consecutively numbered and bear such other identification as OFI or OFL, as the
case may be, may deem appropriate and shall be manually signed, on behalf of the
respective Company by any one of the authorized officers of such Company (and
notwithstanding whether such person shall thereafter cease to hold such office),
or signed in facsimile in such manner as is acceptable to you, but shall
otherwise be uncompleted. Each Commercial Paper Note, or group of Commercial
Paper Notes at one time, delivered to you shall be accompanied by a letter from
the Company on behalf of which such Commercial Paper Note or Notes are being
issued identifying the Commercial Paper Notes transmitted therewith, and you
EXHIBIT H
Page 5
shall acknowledge receipt of such Commercial Paper Note or Notes on the copy of
such letter or some other form of written receipt deemed appropriate by you at
the time of delivery to you of such Commercial Paper Note or Notes. Pending the
issuance of Commercial Paper Notes as provided in Section 3 hereof, all
Commercial Paper Notes delivered to you shall be held by you for the account of
the respective Company for safekeeping.
With the delivery of this Agreement, each Company is furnishing to you, and
from time to time thereafter may furnish to you, a certificate (hereinafter
called an "Incumbency Certificate") signed by a Secretary or Assistant Secretary
of the respective Company, certifying the incumbency and specimen signatures of
officers of the respective Company authorized to execute Commercial Paper Notes
and the Master Note on behalf of the respective Company and also identifying and
certifying the incumbency and specimen signatures of other officers and of
agents (such other officers and agents being hereinafter called "Company
Agents") of the respective Company authorized to act, and to give instructions
and notices, on behalf of the respective Company hereunder. Until you receive a
subsequent Incumbency Certificate, or unless your Corporate Trust Department
shall have actual knowledge of the lack of authority of any individual, you
shall be entitled to rely on the last such Incumbency Certificate delivered to
you for purposes of determining the authorized signers of Commercial Paper Notes
and the Master Note and authorized Company Agents.
For purposes of this Agreement, any Managing Director, Executive Director,
Director or Associate Director of the Administrative Agent or the Letter of
Credit Issuer (hereinafter called a "Bank Officer"), shall be authorized to act,
and to give instructions and notices, on behalf of the Administrative Agent or
the Letter of Credit Issuer, as the case may be, hereunder, and you shall be
entitled to rely on any writing, paper or notice purporting to be signed, sent
or given by any such Bank Officer unless your Corporate Trust Department shall
have actual knowledge that a particular writing, paper or notice was not signed,
sent or given by such Bank Officer.
Upon your receipt of this Agreement, and from time to time thereafter as
you choose, you shall deliver to the Companies a certificate (hereinafter called
a "Certificate of Designation") of an officer of your bank, certifying the
incumbency and specimen signatures of persons in your Corporate Trust Department
or your Commercial Paper Issuance Department who are authorized to authenticate
Commercial Paper Notes and the Master Note. Until the Companies shall receive a
subsequent Certificate of Designation, and unless the Companies shall have
actual knowledge of the lack of authority of any individual, the Companies may
rely on the last such Certificate of Designation delivered to it.
EXHIBIT H
Page 6
3. Issuance of Commercial Paper. (a) All Commercial Paper issuance
instructions shall be given to you as Depositary by a Company Agent by means of
the electronic timesharing facility known as the "Citi Treasury Manager" (the
"CTM"); provided, that such instructions may be given by telephone, by facsimile
transmission, or in writing if the CTM is inoperative. The Companies acknowledge
and agree that you have the right not to accept transactions through CTM as a
result of communication line failure or security breach existing at CTM. In
addition, the Companies further agree that the Companies shall pay any fees or
expenses incurred by the Administrative Agent in connection with the
Administrative Agent's use of and access to the CTM in connection with this
Agreement.
All such instructions given by telephone shall be given by a Company Agent
and shall be promptly confirmed in writing or by telex or telecopy. It is
understood that all telephonic instructions will be electronically
voice-recorded by you, and the Companies and the Letter of Credit Issuer hereby
consent to such recording. All issuance instructions given to you by telephone
shall be immediately repeated back to the party giving such instructions to
confirm that such instructions were correctly understood. In the event that a
discrepancy exists between the telephone instructions and the written
confirmation, the telephone instructions as recorded by you will be deemed to be
the controlling and proper instructions. You shall incur no liability in acting
hereunder upon telephone or other instructions contemplated hereby which the
recipient thereof believed in good faith to have been given by a Company Agent
or a Bank Officer. Such instructions shall specify whether such Commercial Paper
is to be Tranche B Commercial Paper, it being understood that if such
instructions do not specify that such Commercial Paper is to be Tranche B
Commercial Paper, then the Commercial Paper issued pursuant to such instructions
shall be deemed for all purposes to be Tranche A Commercial Paper. For purposes
hereof, the "Face Amount" of any Commercial Paper, Commercial Paper Notes or
Commercial Paper Obligations shall mean the amount thereof payable at the
maturity thereof.
Upon receipt of instructions in respect of Commercial Paper Notes, you
shall withdraw the necessary consecutively numbered Commercial Paper Notes from
safekeeping and, in accordance with the instructions so received, take the
following action with respect to each such Commercial Paper Note:
(i) complete each Commercial Paper Note as to Face Amount (which Face
Amount shall be at least $100,000.00 or an integral multiple of $1,000.00
in excess of $100,000.00), payee or "Bearer", date of issue, maturity date
(which shall be a Business Day not later than the earlier of (A) the 270th
day next succeeding the issue date thereof or (B) the 16th day next
preceding the stated expiration date of the Letter of Credit) and place of
payment;
EXHIBIT H
Page 7
(ii) countersign each such Commercial Paper Note in the space provided
thereon;
(iii) deliver each such Commercial Paper Note to the purchaser, or to
the consignee, if any, designated by the purchaser for the account of the
purchaser, against payment as provided in Section 4 hereof;
(iv) send a copy of each such Commercial Paper Note to the Company on
behalf of which such Commercial Paper Note is being issued on or promptly
following the date of issuance thereof; and
(v) designate in your records each such Commercial Paper Note as
either Tranche A Commercial Paper or Tranche B Commercial Paper in
accordance with the relevant Company's instructions referred to above.
Upon receipt of instructions for the issuance of a Commercial Paper
Obligation or Commercial Paper Obligations (which instructions must be given by
a Company Agent to a Depositary no later than 1:00 p.m., New York City time, on
a Business Day), the Depositary shall give instructions for issuance to DTC
prior to 2:30 p.m., New York City time, on such Business Day in accordance with
the DTC Documents. Instructions for the issuance of Commercial Paper Obligations
shall state that the Commercial Paper should be issued in book-entry form and
shall include the following information with respect to each Commercial Paper
Obligation: the date of issue, the maturity date (which shall be a Business Day
not later than the earlier of (i) the 270th day next succeeding the issue date
thereof or (ii) the 16th day next preceding the stated expiration date of the
Letter of Credit), the Face Amount thereof (which shall be at least $100,000.00;
or an integral multiple of $1,000.00 in excess of $100,000.00); the discount
rate and the amount of discount, and whether such Commercial Paper Obligations
are Tranche A Commercial Paper or Tranche B Commercial Paper (it being
understood that if no such designation is made, then, subject to the following
paragraph, such Commercial Paper Obligations shall constitute Tranche A
Commercial Paper) and the name of the Company on behalf of which the Commercial
Paper is being issued. Upon receipt of confirmation from DTC that Commercial
Paper Obligations have been issued, the Depositary shall annotate its records
regarding the Master Note to reflect any change in the Face Amount of the
Commercial Paper Obligations outstanding. The details of each Commercial Paper
Obligation as reflected in the Depositary's records and the records of DTC shall
be conclusive evidence of the terms of the Master Note, including the Face
Amount, date of issue, discount rate and maturity date of each Commercial Paper
Obligation evidenced thereby, and whether such Commercial Paper Obligations are
Tranche A Commercial Paper or Tranche B Commercial Paper and shall be binding
and conclusive on the Companies; it being understood, however, that the failure
to
EXHIBIT H
Page 8
make such notations on the Depositary's records shall not affect the obligations
of the Companies hereunder. No Commercial Paper Obligations shall be issued
unless the Depositary shall have received in its sole judgment complete
instructions from a Company Agent as to the matters specified in this Section
3(a). The Companies hereby irrevocably agree with the Depositary that the
aggregate amount owing at any time by the Companies under the Master Note
evidencing all outstanding Commercial Paper Obligations shall, in the absence of
manifest error, be the amount reflected in the Depositary's records. The
Depositary shall incur no liability in acting upon telephone instructions which
it believes in good faith to have been given by a Company Agent.
Notwithstanding anything to the contrary contained herein, (1) no Tranche A
Commercial Paper shall be issued by you if the Face Amount of all Tranche A
Commercial Paper (after giving effect to all payments of maturing Tranche A
Commercial Paper then being made, to the use of the proceeds of any Commercial
Paper then being issued and to any payments made pursuant to Section 3.02(d) of
the Credit Agreement and the sixth paragraph of this Section 3(a)), would exceed
an amount equal to the lesser of (A) (x) the Total Tranche A Loan Commitment
less (y) the sum of (i) the aggregate unpaid principal amount of all Tranche A
Loans and (ii) an amount equal to the aggregate principal amount of all Unpaid
Drawings in respect of Tranche A Commercial Paper or (B) (x) the Stated Amount
of the Letter of Credit less (y) the sum of (i) the aggregate unpaid principal
amount of all Unutilized L/C Loans, (ii) the Face Amount of Tranche B Commercial
Paper outstanding and (iii) the aggregate unpaid principal amount of all Unpaid
Drawings in respect of Commercial Paper; and (2) no Tranche B Commercial Paper
shall be issued by you if the Face Amount of all Tranche B Commercial Paper
(after giving effect to all payments of maturing Tranche B Commercial Paper then
being made, to the use of the proceeds of any Commercial Paper then being issued
and to any payments made pursuant to Section 3.02(d) of the Credit Agreement and
the sixth paragraph of this Section 3(a)), would exceed an amount equal to the
lesser of (A) (x) the aggregate amount of the Total Tranche B Loan Commitment
less (y) the sum of (i) the aggregate unpaid principal amount of all Tranche B
Loans and (ii) an amount equal to the aggregate principal amount of all Unpaid
Drawings in respect of Tranche B Commercial Paper or (B) (x) the Stated Amount
of the Letter of Credit less (y) the sum of (i) the aggregate unpaid principal
amount of all Unutilized L/C Loans, (ii) the Face Amount of Tranche A Commercial
Paper outstanding and (iii) the aggregate unpaid principal amount of all Unpaid
Drawings in respect of Commercial Paper. The Administrative Agent shall prior to
the initial issuance of Commercial Paper hereunder inform you in writing of the
amount of the Total Tranche A Loan Commitment, the Total Tranche B Loan
Commitment, the outstanding principal amount of Tranche A Loans and Tranche B
Loans, the Unpaid Drawings in respect of Tranche A Commercial
EXHIBIT H
Page 9
Paper and Tranche B Commercial Paper and the aggregate unpaid principal amount
of all Unutilized L/C Loans. The Administrative Agent shall also promptly inform
you in writing of any change in the Total Tranche A Loan Commitment, the Total
Tranche B Loan Commitment, the outstanding principal amount of Tranche A Loans
and Tranche B Loans, the Unpaid Drawings in respect of Tranche A Commercial
Paper and Tranche B Commercial Paper and the aggregate unpaid principal amount
of Unutilized L/C Loans. You shall be entitled to, and you shall, rely on the
most recent such information received by you from the Administrative Agent.
Notwithstanding anything to the contrary contained in this Agreement or any
other Credit Document, but without limiting any of the obligations of the
Companies pursuant to any other Section of this Agreement or any other Credit
Document, on any day on which both (i) Commercial Paper issued by a Company
matures (such Commercial Paper, "Maturing Commercial Paper") and (ii) new
Commercial Paper will be issued by such Company (such Commercial Paper, "New
Commercial Paper"), such Company will pay to the Letter of Credit Issuer an
amount equal to (x) the Face Amount of such Maturing Commercial Paper plus (y)
the aggregate principal amount of all Unpaid Drawings in respect of Commercial
Paper that matured before such day less (z) the proceeds from the sale of such
New Commercial Paper (net of the discount applicable thereto and all fees to be
paid from such proceeds to the dealer or dealers in respect thereof) expected to
be deposited on such date in the relevant Commercial Paper Account in accordance
with Section 3.03(c) of the Credit Agreement and Section 1 of this Agreement,
such payment to be made prior to the issuance of such New Commercial Paper and
to be specifically designated for the purpose of reimbursing, in part, the
Letter of Credit Issuer for the Unpaid Drawing that will result on such date as
a result of the Drawing the proceeds of which will be deposited into the
relevant L/C Subaccount for the purpose of paying such Maturing Commercial
Paper.
Pursuant to the terms of the Credit Agreement and subject to the terms of
Section 6 hereof, the Companies may deliver to you a notice requesting
termination of the Letter of Credit on a date to be specified in such notice
(the "Letter of Credit Termination Date"). The Letter of Credit Termination Date
may occur only on a date on which there is no Commercial Paper outstanding. No
Commercial Paper shall be issued by you on or after the receipt of notice of the
Letter of Credit Termination Date. Promptly after the Letter of Credit
Termination Date, you shall return the Letter of Credit to the Letter of Credit
Issuer and the Master Note and any unissued Commercial Paper Notes to the
Companies.
Instructions given via the CTM System shall be entered as prescribed in the
user documentation provided by you and all instructions, whether via the CTM
System, by telephone or in writing, must be entered into the CTM System or
received by you,
EXHIBIT H
Page 10
as the case may be, not later than 1:00 P.M. New York City time for same-day
delivery.
A copy of all instructions with respect to the issuance of Commercial Paper
given to you by a Company Agent pursuant to this Section 3 shall be given by you
to the Letter of Credit Issuer and the Administrative Agent promptly after such
instructions are given to you and, subject to the directions set forth in the
fifth preceding paragraph, you shall be completely protected in relying on such
instructions unless you receive in a timely manner contrary instructions in
accordance with paragraph (b) of this Section 3.
(b) No Commercial Paper shall be issued by you unless you shall have
received, in your judgment, complete instructions from a Company Agent as to the
matters specified above in paragraph (a) of this Section 3. Any instructions
given to you by any Company Agent to issue and deliver Commercial Paper
hereunder on behalf of a Company shall constitute a representation and warranty
on the part of such Company that the issuance of such Commercial Paper will not
violate or contravene any applicable law, rule, regulation, order or contractual
agreement binding upon such Company (including, without limitation, any
securities law or law pertaining to investment companies or any order of any
court, governmental agency or regulatory authority) and will be in conformity
with the terms of the Credit Agreement.
Notwithstanding any instructions received by you from a Company Agent, you
shall not issue Commercial Paper pursuant to such instructions if a Vice
President, Assistant Vice President or Senior Trust Officer of your Corporate
Trust Department shall receive, prior to the time of issuance of the relevant
Commercial Paper Obligations or delivery of the relevant Commercial Paper Notes
to the purchaser thereof, instructions from the Administrative Agent or the
Letter of Credit Issuer not to issue Commercial Paper because the issuance of
Commercial Paper is prohibited by the Credit Agreement or the conditions
precedent set forth in any of the applicable provisions of Section 6 of the
Credit Agreement are not then satisfied, which instructions may be specific with
respect to a particular issue of Commercial Paper or may be general and
applicable to all Commercial Paper issued after receipt of such instructions
until revoked or superseded by further instructions from the Administrative
Agent.
Any telephonic instructions given to you by a Bank Officer shall be
confirmed in writing within twenty-four hours of the time received by you
(according to your written records), and you shall incur no liability for acting
in accordance with any such telephonic instructions reasonably believed by you
in good faith to have been given by an authorized individual.
EXHIBIT H
Page 11
Any Commercial Paper issued in accordance with the terms of this Depositary
Agreement and the Credit Agreement prior to the earliest of (x) the Expiry Date;
(y) the time of receipt by the Depositary of the request from the Letter of
Credit Issuer to surrender the Letter of Credit pursuant to Section 3.01(f) of
the Credit Agreement; or (z) the time of receipt by the Depositary of the notice
from the Companies of the Letter of Credit Termination Date, shall be supported
by the Letter of Credit.
(c) It is understood that DTC may request the delivery of Commercial Paper
Notes in exchange for Commercial Paper Obligations represented by the Master
Note, including without limitation upon the termination by DTC of its services
pursuant to the DTC Documents. Accordingly, the Depositary is authorized to
complete and deliver a Commercial Paper Note in partial or complete substitution
for a Commercial Paper Obligation of the same Face Amount, maturity, issuer and
Tranche or, upon the request of DTC, for all Commercial Paper Obligations
represented by the Master Note, as the case may be. Upon the completion or
delivery of any such Commercial Paper Note, the Depositary shall annotate its
records regarding the Master Note to reflect a corresponding reduction in the
Face Amount of the Commercial Paper Obligations outstanding. The Depositary's
authority to so complete and deliver such Commercial Paper Notes shall be
irrevocable at all times from the time a Commercial Paper Obligation is
purchased until the indebtedness evidenced thereby is paid in full.
4. Delivery of Commercial Paper. No Commercial Paper shall be delivered by
you to any purchaser except pursuant to a sale confirmed prior to 1:00 p.m.
against payment therefor. A Commercial Paper Note shall be deemed delivered
against payment for purposes of this Section 4 if the net sale price of such
Commercial Paper Note is received by you in immediately available funds at or
before the time of your delivery of such Commercial Paper Note to the purchaser,
or if, at the time you deliver such Commercial Paper Note to the purchaser, you
receive its receipt for the delivery in customary form.
If delivery is made against receipt for payment as aforesaid, the
Depositary shall not bear the risk that the purchaser fails either to (i) remit
the proceeds of sale therefore as aforesaid, or (ii) return such Commercial
Paper Notes to you.
Commercial Paper Obligations shall be deemed issued and delivered against
payment for purposes of this Section 4 if the Depositary receives payment from
the purchaser thereof in accordance with the DTC Documents.
EXHIBIT H
Page 12
Each delivery of Commercial Paper shall be subject to the rules of the New
York Clearing House in effect at the time of such delivery.
Proceeds from the sale of Commercial Paper shall be deposited by you in the
relevant Commercial Paper Accounts as provided in Section 1 hereof. The
Companies have authorized the Depositary pursuant to Section 3.03(c) of the
Credit Agreement to make withdrawals from the Commercial Paper Accounts for the
purposes specified in said Section and the Companies hereby confirm to you such
authorization. Any amount remaining in any Commercial Paper Account (excluding
any amount equal to matured but unpaid Commercial Paper) at the close of any
Business Day shall be paid to the Letter of Credit Issuer pursuant to Section
3.03(c) of the Credit Agreement.
If on any Business Day on which Commercial Paper is issued or matures the
CTM System should be inoperative, at the close of such Business Day you shall
prepare a written statement showing the aggregate Face Amount of all Commercial
Paper outstanding at the close of such Business Day, which statement shall
include the Commercial Paper number (in the case of a Commercial Paper Note),
Face Amount, payee if other than Bearer, date of issue, maturity date, issuer
and Tranche of all Commercial Paper issued on such date. Each such statement
shall be sent to the Company and the Letter of Credit Issuer. In all other
cases, the Companies and the Letter of Credit Issuer will have access to such
information via the CTM System and you shall not be obligated to provide the
aforementioned daily statements.
5. Payment of Commercial Paper at Maturity: Drawings Under Letter of
Credit. (a) Each matured Commercial Paper Note presented to you for payment
prior to your close of business on any day that the Paying Office is open for
business and each Commercial Paper Obligation on its maturity date shall be paid
the same day in accordance with the provisions of this Section 5. Any Commercial
Paper Note presented to you for payment after your close of business on the
Expiry Date or after your close of business on the 15th day after its stated
maturity date (or, if such 15th day shall not be a Business Day, on the next
Business Day following such date) shall not be entitled to the benefits of the
Letter of Credit.
(b) Any funds received by you as a result of your making demand for payment
under the Letter of Credit shall be deposited in the relevant L/C Subaccount and
shall not be deposited by you in any Commercial Paper Account or any account
maintained by or for the account of the Companies.
(c) All Commercial Paper Notes paid from funds received by you as a result
of your making a demand for payment under the Letter of Credit shall be marked
paid by you and shall be transmitted by you to the relevant Company by
first-class mail
EXHIBIT H
Page 13
promptly following payment in full of such Commercial Paper Notes unless you
shall have received notice to the contrary from the Letter of Credit Issuer
prior to your transmittal of said Commercial Paper Notes. Monthly statements of
all Commercial Obligations paid from funds received by you as a result of your
making a demand for payment under the Letter of Credit shall be transmitted by
you to the relevant Company by first class mail unless you shall have received
notice to the contrary from the Letter of Credit Issuer prior to your
transmittal of said monthly statement.
(d) It is understood and agreed that in actions taken by you as beneficiary
of the Letter of Credit issued to you as fiduciary for the holders of the
Commercial Paper you shall not be acting as an agent for the Administrative
Agent or the Letter of Credit Issuer but in a fiduciary capacity on behalf of
the holders of the Commercial Paper.
6. Substitute Letters of Credit. Section 3.01 of the Credit Agreement
contains provisions describing circumstances in which the Letter of Credit
Issuer is required, or has the right, to issue a substitute letter of credit in
substitution for or replacement of the theretofore outstanding Letter of Credit
and/or in which you shall be required to surrender an outstanding Letter of
Credit to the Letter of Credit Issuer, and reference is made to said Section in
the Credit Agreement for such provisions. You hereby agree to be bound by such
provisions, and the Companies and the Letter of Credit Issuer hereby agree that
you shall be entitled to the benefit of such provisions and may enforce any
provision requiring the issuance by the Letter of Credit Issuer of a substitute
Letter of Credit to the same extent as the Company.
7. Inspection of Documents By Noteholders. You shall keep a fully executed,
or conformed, copy of the Credit Agreement and this Agreement (together with all
amendments, modifications, supplements, waivers and consents made or given with
respect thereto), as well as a specimen copy of the Letter of Credit, on file at
the office of your Corporate Trust Department. You shall permit reasonable
inspection to be made of such documents by the holder of any Commercial Paper or
by any officer, employee or agent of such holder, provided that the person
purporting to be such holder establishes to your satisfaction that he is in fact
such holder of such Commercial Paper and, in cases where inspection is sought to
be made by a person purporting to be an officer, employee or agent of such
holder, that such person submits evidence satisfactory to you of his authority
to make such inspection on behalf of the holder of such Commercial Paper. The
Companies shall promptly advise you of any amendment, modification, waiver or
consent made or given with respect to the Credit Agreement, and, promptly after
the effectiveness thereof, shall furnish you with a fully executed or conformed
copy of such amendment, modification, waiver or consent.
EXHIBIT H
Page 14
8. Indemnity. (a) The Companies agree to indemnify you, and hold you
harmless, from and against any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments, demands, damages, costs
and expenses (including, without limitation, interest and reasonable attorneys'
fees) resulting from the exercise of your rights and/or the performance of your
duties hereunder, including the exercise of your rights and/or the performance
of your duties as fiduciary under the Letter of Credit; provided, however, that
the Companies shall not be liable to indemnify or hold you harmless with respect
to any loss, liability, action, suit, judgment, demand, damage, cost or expense
resulting from or attributable to your negligence or wilful misconduct or that
of your officers, employees or agents. The foregoing indemnity includes, but is
not limited to, any action taken or omitted to be taken by you upon telephonic
instructions (authorized herein) received by you from, or believed by you in
good faith to have been given by, the proper person or persons.
(b) Neither you nor any of your officers, employees or agents shall be
liable to the Companies for any action taken or omitted to be taken by you or
them hereunder or in connection with the Letter of Credit except for your
negligence or wilful misconduct or that of your officers, employees or agents.
9. Representations and Warranties. In addition to any other representations
and warranties on the part of the Companies contained herein, each Company
hereby represents and warrants to you that its entry into this Agreement, and
your appointment by the Company as Depositary, Issuing and Paying Agent and
fiduciary, have been duly authorized by all necessary corporate action on the
part of such Company and will not violate, breach or contravene any law, rule,
regulation, order, contract or agreement binding upon the Company.
10. Resignation or Removal of Depositary. (a) Subject to the further
provisions of this Section 10, you may resign at any time as Depositary, Issuing
and Paying Agent and fiduciary hereunder by your delivery to the Companies, the
Letter of Credit Issuer and the Administrative Agent of written notice of
resignation. You may be removed by the Companies as such Depositary, Issuing and
Paying Agent and fiduciary at any time, with or without cause, by written notice
of removal delivered to you, the Letter of Credit Issuer and the Administrative
Agent. Upon any such resignation or removal the Companies may, without other
formality than appointment and designation in writing, appoint a successor
Depositary, Issuing and Paying Agent and fiduciary hereunder approved by the
Letter of Credit Issuer and the Administrative Agent. Any successor Depositary
shall have a participant relationship with DTC should Commercial Paper at that
time be issued through the DTC book-entry system.
EXHIBIT H
Page 15
(b) Upon acceptance by a qualified successor Depositary, Issuing and Paying
Agent and fiduciary of its appointment hereunder, you shall deliver to such
successor all Commercial Paper Notes (and in the case of the Master Note,
deliver it to the issuer thereof, which shall deliver a new Master Note to such
successor) then held by you hereunder for the respective accounts of the issuer
thereof for safekeeping, against receipt by such successor, and shall transmit
to such successor for deposit in an account established by such successor, all
funds, if any, then on deposit in any L/C Subaccount in excess of that amount
which is equal to the Face Amount of all outstanding Tranche A Commercial Paper
or Tranche B Commercial Paper (as the case may be) theretofore issued by you
hereunder on behalf of the respective Company.
(c) No Commercial Paper Notes shall be delivered to you by either Company
for safekeeping or issuance hereunder at or at any time following such time of
transmission to you of its written notice of removal or the time of such
Company's receipt of your written notice of resignation, nor shall any
Commercial Paper Notes or Commercial Paper Obligations be issued or delivered to
any purchaser by you after transmission by you of your written notice of
resignation or the time of your receipt of the written notice of removal by the
Companies.
(d) Anything herein to the contrary notwithstanding, you shall not be
discharged from your duties or obligations hereunder with respect to Commercial
Paper theretofore issued and still outstanding following your resignation or
removal until: (i) a successor Depositary, Issuing and Paying Agent and
fiduciary has been appointed by the Companies with the approval of the Letter of
Credit Issuer and the Administrative Agent and has accepted its appointment
hereunder; (ii) new L/C Subaccounts have been established at such successor's
offices for purposes of this Agreement; (iii) all Commercial Paper Notes then
held by you hereunder for safekeeping have been delivered to such successor
(and, in the case of a Master Note, have delivered it to the issuer thereof,
which shall deliver a new Master Note to such successor); (iv) all funds
maintained in each L/C Subaccount, in excess of that amount necessary to pay in
full all outstanding Tranche A Commercial Paper or Tranche B Commercial Paper
(as the case may be) issued by you hereunder on behalf of the respective
Company, as aforesaid, have been remitted to such successor for deposit in such
new corresponding L/C Subaccount; (v) the Letter of Credit has been assigned and
transferred or a new Letter of Credit has been issued by the Letter of Credit
Issuer to such successor as fiduciary for the holders of Commercial Paper issued
by such successor after issuance or transfer of such Letter of Credit; (vi) such
successor has executed and delivered such agreements and instruments as the
Companies and/or the Letter of Credit Issuer and/or the Administrative Agent may
have requested in connection with such successor's appointment as Depositary,
Issuing and Paying Agent and fiduciary hereunder; and (vii) all
EXHIBIT H
Page 16
outstanding Commercial Paper entitled, at the time of issuance thereof, to the
benefits of the Letter of Credit under which you are fiduciary have been paid in
full or moneys for the payment therefor shall have been returned to the Letter
of Credit Issuer pursuant to Section 1 hereof.
(e) You shall assign and transfer the Letter of Credit to the successor
Depositary, Issuing and Paying Agent and fiduciary hereunder pursuant to the
provisions of the Letter of Credit. If there is issued a substitute Letter of
Credit by the Letter of Credit Issuer in favor of the successor Depositary,
Issuing and Paying Agent and fiduciary hereunder and payment in full of all
outstanding Commercial Paper entitled to the benefits of the Letter of Credit
under which you are fiduciary, you shall promptly surrender such Letter of
Credit to the Letter of Credit Issuer.
(f) Any successor Depositary, Issuing and Paying Agent and fiduciary
hereunder shall provide the Companies, the Letter of Credit Issuer and the
Administrative Agent with its address, and telephone, telex and telecopier
numbers, to be used for purposes of Section 13 hereof in a notice complying with
the terms of said Section.
(g) Any successor Depositary, Issuing and Paying Agent and fiduciary to be
qualified hereunder must at all times be a domestic bank or trust company having
its principal office in New York City, New York, be a member of the Federal
Reserve System and be authorized to accept deposits and offer checking account
facilities.
11. Term and Termination. (a) The term of this Agreement shall extend from
the date hereof and shall end on the earlier of:
(i) the date of expiration of the Letter of Credit issued by the
Letter of Credit Issuer under the Credit Agreement; or
(ii) the date of termination specified in the termination notice given
by the Companies pursuant to paragraph (b) of this Section 11.
Any Commercial Paper outstanding on the date of any termination of this
Agreement pursuant to paragraph (b) of this Section 11 shall nevertheless remain
valid obligations of the Company on behalf of which the Commercial Paper was
issued and shall be entitled to the benefits of the provisions of the Letter of
Credit, and the provisions of this Agreement shall continue to be applicable
with respect to the payment of such Commercial Paper to the same extent as if
this Agreement had not terminated.
EXHIBIT H
Page 17
(b) The Companies may terminate this Agreement, and the authority granted
to you herein, at any time upon not less than seven Business Days' prior written
notice given contemporaneously to you, the Administrative Agent and the Letter
of Credit Issuer specifying the termination date hereof. Promptly following your
receipt of such notice, you shall redeliver to the respective Companies all
Commercial Paper Notes and Master Notes then held by you hereunder for their
respective accounts for safekeeping, against receipt, and shall return to the
Letter of Credit Issuer, all funds, if any, then on deposit in, or otherwise to
the credit of, each L/C Subaccount in excess of that amount which is equal to
the Face Amount of all outstanding Tranche A Commercial Paper or Tranche B
Commercial Paper (as the case may be) theretofore issued by you hereunder on
behalf of the respective Company.
(c) No Commercial Paper Notes shall be delivered to you by either Company
for safekeeping or issuance hereunder at any time following the time of
transmission to you of such notice of termination, nor shall any Commercial
Paper Notes or Commercial Paper Obligations be issued or delivered to any
purchaser by you after your receipt of such notice of termination. Anything
herein or in the Credit Agreement to the contrary notwithstanding, the Letter of
Credit Issuer shall not be required to issue any Letter of Credit after the date
of its receipt of such notice of termination except as required by the terms of
the Credit Agreement to cover Commercial Paper theretofore properly issued by
you hereunder.
12. Amendments and Modifications. No amendment, modification, termination
or waiver of any provision of this Agreement shall be effective unless the same
shall be in writing and signed by the Companies, the Letter of Credit Issuer,
the Administrative Agent, and the Depositary. No such amendment, modification,
termination or waiver shall adversely affect the rights of the holder or holders
of any Commercial Paper outstanding at the time of such amendment, modification,
termination or waiver unless consented to in writing by such holder or holders.
Notwithstanding anything to the contrary contained in this Depositary
Agreement or the Credit Agreement, no material amendment or modification of any
provision of this Agreement shall be effective until the Companies and/or the
Administrative Agent shall have notified Moody's and S&P in writing of such
amendment or modification.
13. Notices. All notices required to be given hereunder shall be deemed
given when given in the manner provided for in the Credit Agreement, addressed
as specified below (or addressed to such other address as may be designated from
time to time by a Person listed below to the others as its address for such
purpose):
EXHIBIT H
Page 18
If to the Depositary: (i) For the receipt of Commercial Paper
Notes or issuance instructions:
CITIBANK, N.A.
111 Wall Street, 5th Floor
New York, New York 10043
Attention: Issuance Department
Ms. Yelba Quinn
Telephone: (212) 657-4532
Telecopier: (212) 657-0261
(ii) For all other purposes:
CITIBANK, N.A.
120 Wall Street, 13th Floor
New York, New York 10043
Attention: Corporate Trust Department
Ms. Florence Mills
Telephone: (212) 412-6227
Telecopier: (212) 480-1614
If to the Companies: OMNICOM FINANCE INC.
OMNICOM FINANCE LIMITED
437 Madison Avenue
New York, New York 10022
Attention: Treasurer
Tel. No. (212) 415-3725
Telecopier No. (212) 415-3530
If to the Letter of ABN AMRO BANK N.V., NEW YORK BRANCH
Credit Issuer: 335 Madison Avenue
New York, New York 10017
Attention: Linda Boardman
Tel. No. (212) 370-8509
Telecopier No. (212) 682-0364
If to the Administrative
Agent: ABN AMRO BANK N.V., NEW YORK BRANCH
335 Madison Avenue
New York, New York 10017
Attention: Linda Boardman
Tel. No. (212) 370-8509
Telecopier No. (212) 682-0364
14. Binding Effect, Assignment. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. No party hereto may assign any of its rights or obligations
hereunder except with the prior written consent of all parties hereto.
15. Service Fee. The fee for your services hereunder shall be as mutually
agreed upon between the Companies and you and shall be payable by the Companies.
Neither the Letter of
EXHIBIT H
Page 19
Credit Issuer nor the Administrative Agent shall have any responsibility or
liability for the payment of any such fee.
16. Governing Law. This Agreement shall be deemed to be a contract made
under the laws of the State of New York and for all purposes shall be governed
by and construed in accordance with the laws of said State.
17. Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto on separate counterparts, each
of which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute one and
the same Agreement.
18. Headings. Section headings used in this Agreement are for convenience
only and shall not affect the construction of this Agreement.
19. Fiduciary Duties. It is understood that you are acting as fiduciary
only to the extent that you are (i) maintaining the L/C Subaccounts, (ii)
holding the Letter of Credit for, and have the right to draw under the Letter of
Credit on behalf of, the holders from time to time of the Commercial Paper Notes
and (iii) applying the proceeds of payment under the Letter of Credit for the
benefit of said holders.
20. Right to Rely. You may consult with counsel of your choice, including
in-house counsel, and shall not be liable for any action taken, suffered or
omitted by you in accordance with the advice of such counsel. Further, you may
rely and shall be protected in acting upon any request, certificate, opinion of
counsel, statement, instrument, report, notice or other paper or document
reasonably believed by you to be genuine and to have been signed or presented by
the proper party or parties in connection with this Agreement.
EXHIBIT H
Page 20
21. Withholding Taxes. The Depositary shall not be liable for any tax,
levy, impost, deduction, charge or withholding imposed, levied or made by or in
the United Kingdom or any political subdivision or taxing authority thereof or
therein, either (i) on or by virtue of the execution or delivery of this
Depositary Agreement or (ii) on any payment to be made by the Depositary
pursuant to this Depositary Agreement.
OMNICOM FINANCE INC.
By ___________________________________
Title:
OMNICOM FINANCE LIMITED
By ___________________________________
Title:
AGREED:
CITIBANK, N.A., as Depositary, Issuing
and Paying Agent and Fiduciary
By ___________________________________
Title:
CONSENTED AND AGREED TO:
ABN AMRO BANK N.V., NEW YORK BRANCH
as Letter of Credit Issuer
and as Administrative Agent
By ___________________________________
Title:
By ___________________________________
Title:
EXHIBIT J
LETTER OF CREDIT REQUEST
[Date]
ABN AMRO Bank N.V., New York Branch
as Administrative Agent for the Banks
party to the Credit
Agreement referred to below and
as Letter of Credit Issuer
500 Park Avenue
New York, New York 10022
Attention: __________________________
Ladies and Gentlemen:
The undersigned, Omnicom Finance Inc. and Omnicom Finance Limited, refer to
the Credit Agreement dated as of May 10, 1996 (as amended from time to time, the
"Credit Agreement", the terms defined therein being used herein as therein
defined), among the undersigned, certain Banks party thereto and ABN AMRO Bank
N.V., New York Branch, as maker of Swingline Loans referred to therein, as
Letter of Credit Issuer and as Administrative Agent for such Banks and hereby
request the Letter of Credit Issuer to issue a Letter of Credit on ________ (the
"Date of Issuance") in the Stated Amount of ________.
The undersigned hereby certify that the following statements are true on
the date hereof, and will be true on the Date of Issuance:
(A) The representations and warranties contained in Section 7 of the
Credit Agreement are correct as though made on and as of such date; and
(B) No Default or Event of Default has occurred and is continuing.
Very truly yours,
OMNICOM FINANCE INC.
By____________________
Title:
OMNICOM FINANCE LIMITED
By____________________
Title:
EXHIBIT K
================================================================================
OMNICOM GROUP INC.,
as Guarantor
GUARANTY
Dated as of May 10, 1996
================================================================================
TABLE OF CONTENTS
Section Page
- ------- ----
1. The Guarantee........................................................... 1
2. Waiver of Notice, Etc................................................... 2
3. Waiver of Suretyship Defenses........................................... 2
4. Obligations Unconditional............................................... 3
5. Subrogation............................................................. 3
6. Representations and Warranties.......................................... 4
(a) Corporate Existence............................................... 4
(b) Action............................................................ 5
(c) No Breach......................................................... 5
(d) Approvals......................................................... 5
(e) Financial Condition............................................... 5
(f) Financial Disclosure.............................................. 6
(g) Litigation........................................................ 6
(h) True and Complete Disclosure...................................... 6
(i) Taxes............................................................. 7
(j) Capitalization.................................................... 7
(k) Environmental Matters............................................. 7
(l) Subsidiaries, Etc................................................. 7
(m) Investment Company Act............................................ 8
(n) Public Utility Holding Company Act................................ 8
(o) Ownership of Borrowers............................................ 8
(p) Ownership of Intellectual Property................................ 8
(q) Margin Stock, Etc................................................. 8
7. Covenants............................................................... 9
(a) Financial Statements, Etc......................................... 9
(b) Bookkeeping....................................................... 11
(c) Maintenance of Property; Insurance................................ 11
(d) Existence, Etc.................................................... 11
(e) Compliance with Applicable Laws................................... 11
(f) ERISA............................................................. 12
(g) Fiscal Year, Etc.................................................. 13
(h) Lines of Business................................................. 13
(i) Liens............................................................. 13
(j) Prohibition of Fundamental Changes................................ 14
(k) Leases............................................................ 15
(l) Indebtedness...................................................... 15
Section Page
- ------- ----
7. (m) Investments...................................................... 16
(n) Transactions with Affiliates..................................... 17
(o) Total Consolidated Indebtedness to Total Consolidated
Capitalization Ratio............................................. 17
(p) Debt to Cash Flow Ratio.......................................... 17
(q) Certain Obligations Respecting Subsidiaries ..................... 18
8. Definitions ........................................................... 18
9. Continuing Guarantee, Etc. ........................................... 22
10. Successors and Assigns ................................................ 23
11. Amendments, Etc. ...................................................... 23
12. Receipt of Credit Agreement ........................................... 23
13. Setoff ................................................................ 23
14. Notices ............................................................... 23
15. No Waiver ............................................................. 23
16. Statute of Limitations ................................................ 24
17. Generally Accepted Accounting Principles .............................. 24
18. Governing Law, Submission to Jurisdiction ............................. 24
19. Judgment Currency ..................................................... 25
GUARANTY
GUARANTY, dated as of May 10, 1996, 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. and Omnicom Finance Limited (the
"Borrowers"), various financial institutions (the "Banks") and ABN AMRO Bank
N.V., New York Branch, as Swingline Bank (the "Swingline Bank"), as Letter of
Credit Issuer (the "Letter of Credit Issuer") and as Administrative Agent (the
"Administrative Agent") (the Banks, the Swingline Bank, the Letter of Credit
Issuer and the Administrative Agent being hereinafter collectively referred to
as the "Guaranteed Parties") have entered into a Credit Agreement, dated as of
May 10, 1996 (as modified, supplemented or amended from time to time, the
("Credit Agreement"), providing for the making of Loans and the issuance of a
Letter of Credit as contemplated therein;
WHEREAS, the Borrowers are indirect wholly-owned Subsidiaries of the
Guarantor;
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 and the issuance of the
Letter of Credit under the Credit Agreement that the Guarantor shall have
executed and delivered the Guaranty; and
WHEREAS, the Guarantor will obtain benefits as a result of the Loans made
to, and the Letter of Credit issued for the account of, 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 Guarantee. 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,
EXHIBIT K
Page 2
indemnities, fees and interest thereon) of the Borrowers now existing or
hereafter incurred under, arising out of or in connection with the Credit
Agreement or the Depositary Agreement (including without limitation all Unpaid
Drawings, but excluding all obligations of the Borrowers in respect of
Commercial Paper) and the due performance and compliance with the terms of the
Credit Agreement, the Notes and the Depositary Agreement 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, the Swingline Bank, the Letter of Credit Issuer
or the Administrative Agent, shall be made on the same basis as payments by the
Borrowers under Sections 5.03 and 5.04 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 such 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 therefor, 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
thereagainst;
(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
EXHIBIT K
Page 3
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 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
EXHIBIT K
Page 4
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, in each case on and after, but at no time prior
to, the earlier of (I) the date (the "Subrogation Trigger Date") which is one
year and five days after the date on which all indebtedness of the Borrowers
owing to any of the Guaranteed Parties has been paid in full if and only if (x)
no Default or Event of Default of the type described in Section 10.05 of the
Credit Agreement with respect to the respective Other Party has existed at any
time on and after the date of this Guaranty to and including the Subrogation
Trigger Date and (y) the existence of the Guarantor's rights under this clause
(b) would not make the Guarantor a creditor (as defined in the Bankruptcy Code)
of the respective Other Party in any insolvency, bankruptcy, reorganization or
similar proceeding commenced on or prior to the Subrogation Trigger Date or (II)
the effective date of any amendment to Title 11 of the United States Code or of
any decision of the United States Supreme Court that in the reasonable opinion
of the Administrative Agent provides, in effect, that the status of the
Guarantor as an insider creditor of the Borrowers will not cause transfers of an
interest of the Borrowers in property (including payments or grants of security
interests by the Borrowers) to any Guaranteed Party to be subject to avoidance
as a preference for a longer period of time than if the Guaranteed Obligations
of the Borrowers had not been guaranteed or otherwise secured by the Guarantor
or its assets.
6. Representations and Warranties. In order to induce the Banks to make the
Loans and participate in the Swingline Loans and the Letter of Credit, the
Swingline Bank to make Swingline Loans and the Letter of Credit Issuer to issue
the Letter of Credit, 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,
EXHIBIT K
Page 5
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.
(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 By-Laws 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, 1995 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
EXHIBIT K
Page 6
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, 1995 through the date hereof, 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 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 or the Swingline 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
EXHIBIT K
Page 7
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 March 31, 1996, the authorized capital stock
of the Guarantor consists of (i) 150,000,000 shares of common stock, $.50
par value per share, of which 74,539,342 shares are issued and outstanding
and (ii) 7,500,000 shares of preferred stock, none of which shares are
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 3,679,900 shares of common stock of the Guarantor, (y)
the Guarantor's 4-1/2/6-1/4% Step-Up Convertible Subordinated Debentures
due 2000 and (z) shares of common stock issuable under certain acquisition
agreements to which the Guarantor is a party, the 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) Subsidiaries, Etc. Schedule I correctly sets forth the name of
each Subsidiary of the Guarantor, the percentage ownership (direct and
indirect) of the Guarantor in the voting securities of each Subsidiary and
also identifies the direct owner thereof, in each case as of December 31,
1995.
(m) Investment Company Act. Neither the Guarantor nor any of its
Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
EXHIBIT K
Page 8
(n) Public Utility Holding Company Act. Neither the Guarantor nor OFI
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.
(o) Ownership of Borrowers. The Guarantor owns all of the capital
stock of The DDB Needham Worldwide Communications Group Inc. ("DDB"), BBDO
Worldwide Inc. ("BBDO"), Omnicom Management, Inc. ("Management") and
Diversified Agency Services Limited ("DASL"), and DDB, BBDO and Management
own, collectively, all of the capital stock of OFI. DASL owns all of the
capital stock of OFL.
(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.
(q) Margin Stock. All proceeds of each Loan and of Commercial Paper
shall be used by the Borrowers for general corporate purposes; provided
that no part of the proceeds of any Loan or any Commercial Paper 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 G, 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 Credit Event, 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 neither the
Guarantor nor any of its Subsidiaries (including without limitation the
Borrowers) will use the proceeds of any Loan or any Commercial Paper 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
EXHIBIT K
Page 9
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, the
expiration of the Letter of Credit and the repayment in full of the Loans, Notes
and Unpaid Drawings, together with interest, fees and all other Obligations
incurred under the Credit Agreement, and the repayment in full of all Commercial
Paper:
(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 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 year and certified
by independent certified public accountants of recognized national
standing reasonably acceptable to the Required Banks, in each case
together with a report of such accounting firm stating that in the
course of its regular audit of the financial statements of the
Guarantor, which audit was conducted in accordance with generally
accepted auditing standards, such accounting firm obtained no
knowledge of any Default or Event of Default which has occurred and is
continuing or, if in the opinion of such accounting firm such a
Default or Event of Default has occurred and is continuing, a
statements the nature thereof.
EXHIBIT K
Page 10
(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.
(vi) From time to time, such other information or documents
(financial or otherwise) as any Bank or the Swingline 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, the Letter of
Credit Issuer, the Swingline Bank 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,
EXHIBIT K
Page 11
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 officers, all at such reasonable
times and intervals and to such reasonable extent as the Administrative
Agent, the Letter of Credit Issuer, the Swingline Bank 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
EXHIBIT K
Page 12
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 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
EXHIBIT K
Page 13
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 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,
the Letter of Credit Issuer, the Swingline Bank 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
EXHIBIT K
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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) [Intentionally Omitted]
(viii) Liens securing Indebtedness permitted by Section
7(1)(viii); and
(ix) 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 (ix) shall not exceed 3.5% of
Consolidated Adjusted Net Worth at such 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 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, 1996
shall be the first such preceding fiscal year, and the actual number of
such preceding fiscal years shall be used until such time
EXHIBIT K
Page 15
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, (v) any Specified Subsidiary may wind up,
liquidate or dissolve its affairs so long as it does not have any material
assets at the time of such winding up, liquidation or dissolution, and (vi)
the Guarantor may transfer, sell or convey the stock of one or more of its
Subsidiaries (other than the Borrower) 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,
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 or the Commercial Paper, (vi) other Indebtedness of
the Borrowers so long as no Default or Event of Default then exists or
would result therefrom, (vii) other Indebtedness of Foreign Subsidiaries of
the Guarantor and
EXHIBIT K
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(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 therefrom, and, in the case of
a purchase or acquisition of stock or securities, such Person becomes
a Subsidiary of the Guarantor;
(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
EXHIBIT K
Page 17
(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 5.5% 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
EXHIBIT K
Page 18
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 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 Paragraph 7(n), 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 insured 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-l 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.
EXHIBIT K
Page 19
"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 Expiry Date) plus (z) until December 31, 1996,
the Guarantor's 4-1/2/6-1/4% Step-Up Convertible Subordinated Debentures
due 2000, at such time.
"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 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) held by OFI on the last day of such fiscal
quarter plus (ii) the Dollar Equivalent of the amount of all Foreign Cash
Equivalents held by OFL 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).
"Designated Subsidiaries" shall mean BBDO Worldwide Inc., BBDO Atlanta
Inc., BBDO Chicago Inc., BBDO Detroit Inc., The DDB Needham Worldwide
Communications Group Inc., DDB Needham Chicago Inc., Rapp Collins Worldwide
Inc., Alcone Marketing Group Inc., Tracy-Locke, Inc., Frank J. Corbett,
Inc., Kallir Philips Ross, Inc. and Thomas A. Schutz Co., Inc.
EXHIBIT K
Page 20
"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.
"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.
EXHIBIT K
Page 21
"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 therefrom (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 therefrom 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 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
EXHIBIT K
Page 22
evidenced by its 4-1/2/6-1/4% Step-Up Convertible Subordinated Debentures
due 2000, 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.
9. Continuing Guarantee, 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.
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 12.13 of
the Credit Agreement.
12. Receipt of Credit Agreement. The Guarantor acknowledges that an
executed (or conformed) copy of the Credit
EXHIBIT K
Page 23
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, the Swingline Bank
and Letter of Credit Issuer 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, the
Swingline Bank or the Letter of Credit Issuer (including without limitation by
branches and agencies of such Bank, Swingline Bank or the Letter of Credit
Issuer 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, the
Swingline Bank, or the Letter of Credit Issuer under this Guaranty, irrespective
of whether or not such Bank, the Swingline Bank or the Letter of Credit Issuer
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 12.03 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.
EXHIBIT K
Page 24
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 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).
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 or of the
United States for the Southern District 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.
EXHIBIT K
Page 25
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 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
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 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.
EXHIBIT K
Page 26
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
and delivered as of the date first above written.
Address
437 Madison Avenue OMNICOM GROUP INC.
New York, New York 10022
Attention: Mr. Fred J. Meyer
Chief Financial By:_________________________
Officer Name:
Title:
Accepted and Agreed to:
ABN AMRO BANK N.V., NEW YORK BRANCH,
as Administrative Agent for the Banks
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
EXHIBIT L
[Form of Competitive Bid Quote Request]
COMPETITIVE BID QUOTE REQUEST
[______________, 19__]
ABN AMRO Bank N.V.,
New York Branch, as
Administrative Agent
500 Park Avenue
New York, New York 10022
Attention:
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of May 10, 1996 (as
amended, supplemented and otherwise modified and in effect from time to time,
the "Credit Agreement") among Omnicom Finance Inc., Omnicom Finance Limited, the
Banks party thereto and ABN AMRO Bank N.V., New York Branch, as maker of
Swingline Loans referred to therein, as Letter of Credit Issuer and as
Administrative Agent for such Banks. Terms used but not defined herein have the
respective meanings given to such terms under the Credit Agreement. This
Competitive Bid Quote Request is being delivered to the Administrative Agent
pursuant to Section 2.13 of the Credit Agreement.
The undersigned hereby requests that the Banks submit, as provided in
Section 2.13 of the Credit Agreement, Competitive Bid Quotes for the proposed
Competitive Bid Borrowing(s) described below:
Competitive Bid Quote Request
EXHIBIT L
Page 2
Borrowing Interest
Borrower Date Amount * Type ** Period ***
- -------- ---- -------- ------- ----------
Please notify, as provided in Section 2.13 of the Credit Agreement, the
Banks of this Competitive Bid Quote Request.
Very truly yours,
OMNICOM [FINANCE INC.][FINANCE
LIMITED]
By____________________________
Name:
Title:
- --------
* Each amount must be $5,000,000 or an integral multiple of $1,000,000 in
excess thereof.
** Insert either "Margin" (in the case of Eurodollar Market Loans) or "Rate"
(in the case of Absolute Rate Loans).
*** 1, 2, 3 or 6 [9 or 12] months (in the case of a Eurodollar Market Loan) or
a period of not less than seven and not more than 360 days after the making
of the Loan the last day of which is a Business Day (in the case of a
Absolute Rate Loan).
Competitive Bid Quote Request
EXHIBIT M
[Form of Competitive Bid Quote]
COMPETITIVE BID QUOTE
[______________, 19__]
ABN AMRO Bank N.V.,
New York Branch, as
Administrative Agent
500 Park Avenue
New York, New York 10022
Attention:
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of May 10, 1996 (as
amended, supplemented and otherwise modified and in effect from time to time,
the "Credit Agreement") among Omnicom Finance Inc., Omnicom Finance Limited, the
Banks party thereto and ABN AMRO Bank N.V., New York Branch, as maker of
Swingline Loans referred to therein, as Letter of Credit Issuer and as
Administrative Agent for such Banks. Terms used but not defined herein have the
respective meanings given to such terms under the Credit Agreement. This
Competitive Bid Quote is being delivered to the Administrative Agent pursuant to
Section 2.13 of the Credit Agreement.
In response to the Competitive Bid Quote Request of Omnicom Finance
[Inc.][Limited] dated [_______, 19__], the undersigned hereby submits, as
provided in Section 2.13 of the Credit Agreement, Competitive Bid Quote(s) for
the proposed Competitive Bid Borrowing(s) described below:
Competitive Bid Quote
EXHIBIT M
Page 2
Borrowing Interest
Borrower Date Amount * Type ** Period*** Rate****
- -------- ---- -------- ------- --------- --------
provided that Omnicom [Finance Inc.][Finance Limited] may not accept offers that
would result in the undersigned making Competitive Bid Loans pursuant hereto in
excess of $[____________] in the aggregate (the "Competitive Bid Loan Limit").
Please notify, as provided in Section 2.13 of the Credit Agreement, Omnicom
[Finance Inc.][Finance Limited] of this Competitive Bid Quote.
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Credit Agreement,
irrevocably obligate(s) us to make the Competitive Bid Loan(s) for which any
offer(s) [is] [are] accepted, in whole or in part (subject to the [__] sentence
of Section 2.13[__] of the Credit Agreement and any Competitive Bid Loan Limit
specified above).
Very truly yours,
[NAME OF BANK]
By____________________________
Name:
Title:
- --------
* Each amount must be per ss.2.03(c)(ii) or an integral multiple of
$1,000,000.
** Insert either "Margin" (in the case of Eurodollar Market Loans) or "Rate"
(in the case of Absolute Rate Loans).
*** 1, 2, 3 or 6 [9 or 12] months (in the case of a Eurodollar Market Loan) or
a period of not less than seven and not more than 360 days after the making
of the Loan the last day of which is a Business Day (in the case of a
Absolute Rate Loan). **** For a Eurodollar Market Loan, specify margin over
or under the Quoted Rate determined for the applicable Interest Period as a
percentage (rounded to the nearest 1/10,000th of 1%) and whether "PLUS" or
"MINUS". For a Absolute Rate Loan, specify rate of interest per annum
(rounded to the nearest 1/10,000th of 1%).
Competitive Bid Quote