Exhibit 10.1
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OMNICOM FINANCE INC. and OMNICOM FINANCE LIMITED,
as Borrowers
364-DAY CREDIT AGREEMENT
Dated as of April 30, 1999
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$750,000,000
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CITIBANK, N.A.,
as Administrative Agent
and
THE BANK OF NOVA SCOTIA,
as Documentation Agent
and
ISTITUTO BANCARIO SAN PAOLO DI TORINO ISTITUTO MOBILIARE ITALIANO SPA,
as Syndication Agent
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TABLE OF CONTENTS(1)
Section Page
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Section 1. Definitions and Principles of Construction.....................1
1.01 Defined Terms..................................................1
1.02 Principles of Construction....................................10
Section 2. Amount and Terms of Loans.....................................10
2.01 The Loans.....................................................10
2.02 Minimum Amount of Each Borrowing..............................11
2.03 Notice of Borrowing...........................................11
2.04 Disbursement of Funds.........................................11
2.05 Notes.........................................................12
2.06 Conversions...................................................13
2.07 Pro Rata Borrowings...........................................13
2.08 Interest......................................................13
2.09 Interest Periods..............................................14
2.10 Increased Costs, Illegality, etc..............................14
2.11 Compensation..................................................16
2.12 Change of Applicable Lending Office...........................17
2.13 [Intentionally Omitted].......................................17
2.14 [Intentionally Omitted].......................................17
2.15 [Intentionally Omitted].......................................17
Section 3. [Intentionally Omitted].......................................17
Section 4. Fees; Termination or Reduction of Commitments;
Commitment Termination Date; Extension of
Commitments; Increase of Commitments..........................17
4.01 Fees..........................................................17
4.02 Termination or Reduction of Commitments.......................18
4.03 Commitment Termination Date;
Extension of Commitments......................................18
4.04 Increase of Commitments.......................................19
Section 5. Prepayments; Payments.........................................20
5.01 Voluntary Prepayments.........................................20
5.02 Mandatory Prepayments.........................................20
5.03 Method and Place of Payment...................................20
5.04 Net Payments..................................................21
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(1) This Table of Contents is provided for convenience only and is not part of
the attached Credit Agreement.
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Section 6. Conditions Precedent..........................................22
6.01 Effectiveness.................................................22
6.02 Borrowings....................................................23
Section 7. Representations, Warranties
and Agreements................................................24
7.01 Corporate Status..............................................24
7.02 Corporate Power and Authority.................................25
7.03 No Violation..................................................25
7.04 Governmental Approvals........................................25
7.05 Litigation....................................................25
7.06 True and Complete Disclosure..................................26
7.07 Use of Proceeds; Margin Regulations...........................26
7.08 Tax Returns and Payments......................................26
7.09 Compliance with ERISA.........................................26
7.10 Subsidiaries..................................................27
7.11 Compliance with Statutes, etc.................................27
7.12 Investment Company Act........................................27
7.13 Public Utility Holding Company Act............................27
7.14 [Intentionally Omitted].......................................27
7.15 Year 2000 Issues].............................................27
Section 8. Affirmative Covenants.........................................28
8.01 Information Covenants.........................................28
8.02 Books, Records and Inspections................................28
8.03 Corporate Franchises..........................................28
8.04 Compliance with Statutes, etc.................................29
8.05 ERISA.........................................................29
8.06 End of Fiscal Years; Fiscal Quarters..........................29
Section 9. Negative Covenants............................................30
9.01 Liens.........................................................30
9.02 Consolidation, Merger, Sale of Assets, etc....................30
9.03 Leases........................................................30
9.04 Indebtedness..................................................30
9.05 Advances, Investments and Loans...............................30
9.06 Transactions with Affiliates..................................31
9.07 Limitation on Restrictions on Subsidiary
Dividends and Other Distributions.............................31
9.08 Business......................................................31
9.09 [Intentionally Omitted].......................................31
9.10 Dividends.....................................................31
Section 10. Event of Default..............................................31
10.01 Payments......................................................31
10.02 Representations, etc..........................................32
10.03 Covenants.....................................................32
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10.04 Default Under Other Agreements................................32
10.05 Bankruptcy, etc...............................................32
10.06 ERISA.........................................................33
10.07 Guaranty......................................................33
10.08 Ownership of the Borrowers....................................33
10.09 Ownership of the Guarantor....................................33
10.10 Judgments.....................................................33
Section 11. The Administrative Agent; Agents..............................34
11.01 Appointment...................................................34
11.02 Nature of Duties..............................................34
11.03 Lack of Reliance on the Administrative Agent..................34
11.04 Certain Rights of the Administrative Agent....................35
11.05 Reliance......................................................35
11.06 Indemnification...............................................35
11.07 The Administrative Agent in its Individual Capacity...........36
11.08 Holders.......................................................36
11.09 Resignation By the Administrative Agent.......................36
11.10 The Documentation Agent and the Syndication Agent.............36
11.11 Replacement...................................................37
Section 12. Miscellaneous.................................................37
12.01 Payment of Expenses, etc......................................37
12.02 Right of Setoff...............................................37
12.03 Notices.......................................................38
12.04 Benefit of Agreement..........................................38
12.05 No Waiver; Remedies Cumulative................................40
12.06 Payments Pro Rata.............................................40
12.07 Calculations; Computations....................................41
12.08 Governing Law; Submission to Jurisdiction; Venue..............41
12.09 Payment Denominations.........................................41
12.10 Counterparts..................................................42
12.11 [Intentionally Omitted].......................................42
12.12 Headings Descriptive..........................................42
12.13 Amendment or Waiver...........................................42
12.14 Survival......................................................42
12.15 Domicile of Loans.............................................43
12.16 Limitation on Additional Amounts, etc.........................43
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SCHEDULE I - Schedule of Commitments
SCHEDULE II - Bank Addresses and Lending Offices
SCHEDULE III - Subsidiaries of the Borrowers as of March 29, 1999
EXHIBIT A - Form of Notice of Borrowing
EXHIBIT B - Form of Note
EXHIBIT C-1 - Form of Opinion of Counsel (New York) - OFI and Guarantor
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 Officers' Certificate - OFL
EXHIBIT D-3 - Form of Officers' Certificate - Guarantor
EXHIBIT E - Form of Guaranty
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364-DAY CREDIT AGREEMENT, dated as of April 30, 1999 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 and Wales ("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"); CITIBANK, N.A., acting in the
manner and to the extent described in Section 11 (in such capacity, the
"Administrative Agent"); THE BANK OF NOVA SCOTIA, as Documentation Agent; and
ISTITUTO BANCARIO SAN PAOLO DI TORINO ISTITUTO MOBILIARE ITALIANO SPA, as
Syndication Agent.
W I T N E S S E T H:
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WHEREAS, the Borrowers have requested the Banks, and the Banks have
agreed, to extend credit to the Borrowers on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and subject to the terms and conditions hereof, the parties hereto hereby agree
as follows:
Section 1. Definitions and Principles of Construction.
1.01 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 11.09.
"Administrative Agent's Account" shall mean such account at the relevant
Payment Office as the Administrative Agent may designate in writing to the other
parties hereto.
"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 such other Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement" shall mean this 364-day Credit Agreement, as modified,
supplemented or amended from time to time.
"Applicable Lending Office" shall mean, with respect to each Bank, (i)
such Bank's Base Rate Lending Office in the case of a Base Rate Loan, and (ii)
such Bank's Eurocurrency Lending Office in the case of a Eurocurrency Rate Loan.
"Applicable Margin" for Eurocurrency Rate Loans and "Applicable Facility
Fee Rate" at any time shall mean the respective rates per annum set forth in the
table below opposite the applicable Rating Level at such time:
Applicable Margin for
Eurocurrency Applicable Facility
Rating Level Rate Loans Fee Rate
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Rating Level 1 0.190% 0.085%
Rating Level 2 0.200% 0.100%
Rating Level 3 0.240% 0.110%
Rating Level 4 0.275% 0.125%
Rating Level 5 0.375% 0.275%
provided that, if the aggregate principal amount outstanding of the Eurocurrency
Rate Loans on any day exceeds 66-2/3% of the Total Commitment, the Applicable
Margin for Eurocurrency Rate Loans for that day shall be 0.050% higher than the
rate set forth above, when the applicable Rating Level is Rating Level 1, Rating
Level 2 or Rating Level 3, and 0.100% higher than the rate set forth above, when
the Applicable Rating Level is Rating Level 4 or Rating Level 5, and provided,
further, that, if the Moody's Rating or the S&P Rating relates to the Guarantor
Subordinated Debt, then the respective rates set forth above shall be determined
by reference to the Rating Level which is one level higher than the Rating Level
which would otherwise apply to such Guarantor Subordinated Debt (for 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, with respect to any Base Rate Loan, for any day,
the higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% or (b) the
rate of interest publicly announced by Citibank in New York, New York, from time
to time, as Citibank's base rate (or, if Citibank ceases to be the
Administrative Agent, the rate of interest publicly announced by the successor
Administrative Agent as its prime lending rate in New York, New York, from time
to time). Each change in any interest rate provided for herein as the basis for
determining the Base Rate shall be taken into account for that purpose with
effect at the time of such change.
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"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 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 Loans of one Type from all the
Banks on a given date (or the conversion of such Loan or Loans of a Bank or
Banks on a given date).
"Business Day" shall mean any day (a) on which commercial banks are not
authorized or required to close in New York City and (b) if such day relates to
a Borrowing of, a payment or prepayment of principal of or interest on, or the
Interest Period for, a Eurocurrency Rate Loan or a notice by any Borrower with
respect to any such Borrowing, payment, prepayment or Interest Period, that is
also a day on which dealings in deposits denominated in Dollars are carried out
in the London interbank market.
"Citibank" shall mean Citibank, N.A. and its successors.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Commercial Paper" shall mean commercial paper of either Borrower which is
not backed by the Letter of Credit referred to in the Amended and Restated
Credit Agreement dated as of May 10, 1996 amended and restated as of February
20, 1998, among OFI, OFL, ABN Amro Bank N.V., New York Branch, as Administrative
Agent and Co-Arranger, Chase Securities, Inc., as Syndication Agent, ABN Amro
Bank, N.V., New York Branch and Chase Manhattan Bank, as Managing Banks, and the
financial institutions identified therein as the Banks, as lenders.
"Commitment" shall mean, for each Bank, the amount set forth opposite such
Bank's name in Schedule I hereto directly below the column entitled
"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).
"Commitment Termination Date" shall have the meaning provided in Section
4.03.
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"Contingent Obligation" shall mean, as to any Person, any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the holder
of such primary obligation against loss in respect thereof; provided, however,
that the term "Contingent Obligation" shall not include (x) endorsements of
instruments for deposit or collection in the ordinary course of business, (y)
guarantees of customary indemnification obligations in connection with
acquisition agreements and (z) guarantees of earn-out payment obligations in
connection with the purchase of property or services to the extent that they are
still contingent. The amount of any Contingent Obligation shall be deemed to be
an amount equal to the stated or determinable amount of the primary obligation
in respect of which such Contingent Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Credit Documents" shall mean this Agreement, each Note and the Guaranty
as modified, supplemented or amended from time to time.
"date hereof" and "date of this Agreement" shall mean April 30, 1999.
"Default" shall mean any event, act or condition which, with notice or
lapse of time, or both, would constitute an Event of Default.
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement, and to any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean any person (as defined in Section 3 (9) of
ERISA) which together with OFI or any of its Subsidiaries would be a member of
the same "controlled group" within the meaning of Section 414 (b), (m), (c) and
(o) of the Code.
"Eurocurrency Base Rate" shall mean, with respect to the Interest Period
for a Eurocurrency Rate Loan, (a) the rate per annum appearing on Page 3750 of
the Dow Jones Markets (Telerate) Service (or on any successor or substitute page
of such service, or any
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successor to or substitute for such service, providing rate quotations
comparable to those currently provided on such page of such service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to Dollar deposits in the
London interbank market) as of 11:00 a.m. (London time) on the date two Business
Days prior to the first day of the Interest Period for such Loan as the London
Interbank Offered Rate (as defined below) for deposits denominated in Dollars
having a term comparable to such Interest Period and (if applicable) in an
amount of $1,000,000 or more, or (b) if no such rate appears on such page or if
such page shall cease to be publicly available or if the information appearing
on such page, in the reasonable judgment of the Administrative Agent, shall
cease accurately to reflect the rate offered by leading banks in the London
interbank market (the "London Interbank Offered Rate") (as reported by any
publicly available source of similar market data selected by the Administrative
Agent that, in the reasonable judgment of the Administrative Agent, accurately
reflects the London Interbank Offered Rate), the average of the offered
quotations to first-class banks in the London interbank market by each of the
Reference Banks for deposits denominated in Dollars in amounts comparable to the
outstanding principal amount of the Eurocurrency Rate Loan for which an interest
rate is then being determined with maturities comparable to the Interest Period
to be applicable to such Eurocurrency Rate Loan, determined as of 11:00 a.m.
(London time) on the date which is two Business Days prior to the commencement
of such Interest Period; provided that, if any Reference Bank fails to provide
the Administrative Agent with its aforesaid quotation, the Eurocurrency Base
Rate shall be based on the quotation or quotations provided to the
Administrative Agent by the other Reference Bank or Reference Banks (and rounded
upward, if necessary, to the nearest whole multiple of 1/16 of 1%).
"Eurocurrency Lending Office" shall mean, for each Bank, the office of
such Bank (or of an Affiliate of such Bank) specified as such in Schedule II
hereto 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.
"Eurocurrency Rate" shall mean, with respect to the Interest Period for a
Eurocurrency Rate Loan, the rate per annum (rounded upward if necessary to the
next whole multiple of 1/100 of 1%) determined by dividing (i) the Eurocurrency
Base Rate applicable to such Interest Period by (ii) a percentage equal to 100%
minus the then stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves) applicable to any member bank of the Federal Reserve System in respect
of Eurocurrency liabilities (as defined in Regulation D) with comparable
maturities.
"Eurocurrency Rate Loan" shall mean any Loan designated or deemed
designated as such by the relevant Borrower at the time of the incurrence
thereof by such Borrower, which Loans bear interest at rates based on rates
referred to in the definition of "Eurocurrency Base Rate" in this Section 1.01.
"Event of Default" shall have the meaning provided in Section 10.
5
"Existing Commitment Termination Date" shall have the meaning provided in
Section 4.03(b).
"Existing Indebtedness" shall have the meaning provided in Section 9.04.
"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
the Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 4.01.
"Foreign Subsidiary" shall mean any Subsidiary which is not organized
under the laws of the United States of America, a State of the United States of
America or the District of Columbia and substantially all of whose assets and
business are located or conducted outside the United States of America.
"Governmental Authority" shall mean the United States or any other nation,
or any political subdivision of any thereof (whether state or local), and any
government, agency, authority, instrumentality, regulatory body, court, central
bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to government.
"Guarantor" shall mean Omnicom Group Inc., a corporation organized and
existing under the laws of New York.
"Guarantor Debt" shall mean Guarantor Senior Debt and Guarantor
Subordinated Debt.
"Guarantor Senior Debt" shall mean (i) non-credit enhanced long-term
senior unsecured debt of the Guarantor or (ii) non-credit enhanced long-term
senior unsecured debt of a Subsidiary of the Guarantor guaranteed by the
Guarantor.
"Guarantor Subordinated Debt" shall mean Subordinated Indebtedness (as
defined in the Guaranty) of the Guarantor that is long-term, unsecured and
non-credit enhanced, including (without limitation) non-credit enhanced
long-term subordinated unsecured debt of a Subsidiary of the Guarantor
guaranteed by the Guarantor, which guaranty qualifies as Subordinated
Indebtedness (as defined in the Guaranty).
"Guaranty" shall have the meaning provided in Section 6.01(g).
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"Indebtedness" shall mean, as to any Person, without duplication, (i) all
indebtedness (including principal, interest, fees and charges) of such Person
for borrowed money (whether by loan or issuance and sale of debt securities or
otherwise) or for the deferred purchase price of property or services (other
than earn-out payment obligations of such Person in connection with the purchase
of property or services to the extent they are still contingent), (ii) the face
amount of all letters of credit issued for the account of such Person and all
drafts drawn thereunder (other than letters of credit issued in support of
accrued expenses and accounts payable incurred in the ordinary course of
business), (iii) all liabilities secured by any Lien on any property owned by
such Person, whether or not such liabilities have been assumed by such Person,
(iv) the aggregate amount required to be capitalized under leases under which
such Person is the lessee and (v) all Contingent Obligations of such Person.
"Interest Determination Date" shall mean, with respect to any Eurocurrency
Rate Loan, the second Business Day prior to the commencement of the Interest
Period relating to such Eurocurrency Rate Loan.
"Interest Period" shall have the meanings provided in Sections 2.09.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority or
other security agreement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any other
similar recording or notice statute, and any capital lease, but excluding any
operating lease even if accompanied by a precautionary filing under the UCC).
"Loan" shall mean shall have the meaning provided in Section 2.01(a).
"London Interbank Offered Rate" shall have the meaning as provided in the
definition of "Eurocurrency Base Rate".
"Margin Stock" shall have the meaning provided in Regulation U of the
Board of Governors of the Federal Reserve System.
"Material Subsidiary" means a Subsidiary of the Guarantor (other than a
Borrower) that alone or together with its Subsidiaries (i) as of the end of the
most recently completed fiscal year of the Guarantor accounted, in terms of
investments therein or advances thereto by the Guarantor and its Subsidiaries,
for more than 10% of the consolidated assets of the Guarantor and its
Subsidiaries, (ii) as of the end of such fiscal year owned more than 10% of the
consolidated assets of the Guarantor and its Subsidiaries, or (iii) accounted in
such fiscal year for more than 10% of the consolidated income of the Guarantor
and its Subsidiaries from continuing operations before income taxes,
extraordinary items and cumulative effect of a change in accounting principles,
all as set forth in the consolidated financial statements of the Guarantor for
such fiscal year.
"Moody's" shall mean Moody's Investors Service, Inc., or any successor
thereto.
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"Moody's Rating" shall mean, as at any time, (i) the rating then currently
in effect by Moody's relating to the Guarantor Senior Debt and (ii) if there is
no rating then currently in effect by Moody's relating to the Guarantor Senior
Debt, the rating then currently in effect by Moody's relating to the Guarantor
Subordinated Debt and (iii) if there is no rating then currently in effect
relating to the Guarantor Debt, the corporate credit rating (if any) then
currently in effect by Moody's.
"Note" shall have the meaning provided in Section 2.05(a).
"Notice of Borrowing" shall have the meaning provided in Section 2.03.
"Notice of Conversion" shall have the meaning provided in Section 2.06.
"Notice Office" shall mean the office of the Administrative Agent located
at 399 Park Avenue, New York, New York 10043, or such other office as the
Administrative Agent may hereafter designate in writing as such to the other
parties hereto.
"Obligations" shall mean all amounts owing to the Administrative Agent or
any Bank pursuant to the terms of this Agreement or any other Credit Document.
"Payment Office" shall mean the office designated by the Administrative
Agent as such to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA or any successor thereto.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
"Plan" shall mean any multiemployer plan or single-employer plan as
defined in Section 4001 of ERISA, which is maintained, or at any time during the
five calendar years preceding the date hereof was maintained, for employees of
OFI or by a Subsidiary of OFI or an ERISA Affiliate.
"Rating Level 1" shall mean (a) no Specified Event of Default has occurred
and is continuing and (b) the Moody's Rating is greater than or equal to Al or
the S&P Rating is greater than or equal to A+.
"Rating Level 2" shall mean (a) no Specified Event of Default has occurred
and is continuing, (b) the Moody's Rating is A2 or the S&P Rating is A and (c)
Rating Level 1 is not in effect.
8
"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 Citibank, The Bank of Nova Scotia and
Istituto Bancario San Paolo Di Torino Istituto Mobiliare Italiano S.p.A.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
"Relevant Institution" shall have the meaning provided in Section 12.02.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan as to which the 30-day notice requirement has not
been waived by the PBGC.
"Required Banks" shall mean, at any time, Banks holding at least 66-2/3%
(or more than 50% in the case of Section 10) of the Total Commitment or, if the
Total Commitment has been terminated, Banks holding at least 66-2/3% (or more
than 50% in the case of Section 10) of the then aggregate unpaid principal
amount of the Obligations.
"S&P" shall mean Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor thereto.
"S&P Rating" shall mean, as at any time, (i) the rating then currently in
effect by S&P relating to the Guarantor Senior Debt and (ii) if there is no
rating then currently in effect by S&P relating to the Guarantor Senior Debt,
the rating then currently in effect by S&P relating to the Guarantor
Subordinated Debt and (iii) if there is no rating then currently in effect by
S&P relating to the Guarantor Debt, the corporate credit rating (if any) then
currently in effect by S&P.
"SEC" shall have the meaning provided in Section 8.01(c).
"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
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of the Guaranty, which default (x) if it occurs during any of the first three
fiscal quarters of the Guarantor, shall be continuing from and after the date 30
days after the last day of the fiscal quarter in which such default occurs and
(y) if it occurs during the fourth fiscal quarter of the Guarantor, shall be
continuing from and after the date 60 days after the last day of the fiscal
quarter in which such default occurs, (c) the Guaranty shall cease to be in full
force and effect, or (d) the Guarantor shall deny or disaffirm the Guarantor's
obligations under the Guaranty.
"Subsidiary" shall mean, as to any Person (the "Relevant Person"), any
other Persons whose financial condition and results are (or should, under U.S.
generally accepted accounting principles, be) consolidated into the financial
statements of the Relevant Person.
"Taxes" shall have the meaning provided in Section 5.04.
"Total Commitment" shall mean, at any time, the sum of the Commitments of
each of the Banks at such time.
"Type" shall mean any type of Loan determined with respect to the interest
option applicable thereto, i.e., a Base Rate Loan or a Eurocurrency Rate Loan.
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount, if any, by
which the present value of the accrued benefits under the Plan as of the close
of its most recent plan year exceeds the fair market value of the assets
allocable thereto, determined in accordance with Section 412 of the Code.
"United States" and "U.S." shall each mean the United States of America.
1.02 Principles of Construction. (a) All references to sections, schedules
and exhibits are to sections, schedules and exhibits in or to this Agreement
unless otherwise specified. The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
(b) All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting principles in the
United States in conformity with those used in the preparation of the financial
statements referred to in Section 6(e) of the Guaranty.
Section 2. Amount and Terms of Loans.
2.01 The Loans. (a) Subject to and upon the terms and conditions set forth
herein, each Bank with a Commitment severally agrees, at any time commencing on
the date hereof to but not including the Commitment Termination Date, to make
loans (each, a "Loan"
10
and collectively, as the context requires, the "Loans") to each Borrower in
Dollars, which Loans (i) shall, at the option of such Borrower, be Base Rate
Loans or Eurocurrency Rate Loans, provided that, except as otherwise
specifically provided in Section 2.10(b), all Loans comprising the same
Borrowing shall at all times be of the same Type, and (ii) may be repaid,
prepaid and reborrowed in accordance with the provisions hereof; provided,
however, that the aggregate principal amount of Loans outstanding from any Bank
shall at no time exceed (after giving effect to the use of the proceeds of any
Loan then being made) an amount equal to the Commitment of such Bank at such
time. More than one Borrowing may occur on the same date.
(b) [Intentionally Omitted]
(c) [Intentionally Omitted]
(d) Anything in this Section 2.01 to the contrary notwithstanding, the
aggregate unpaid principal amount of all Loans outstanding at the same time
shall not exceed the Total Commitment at such time.
(e) [Intentionally Omitted]
2.02 Minimum Amount of Each Borrowing. The aggregate principal amount of
each Borrowing hereunder shall be not less than $10,000,000 or a larger whole
multiple of $1,000,000 for each such Loan, except as required by Section
2.10(b). Borrowings of Loans of different Types or, in the case of Eurocurrency
Rate Loans, having different Interest Periods, at the same time hereunder shall
be deemed separate Borrowings.
2.03 Notice of Borrowing. Whenever either Borrower desires to make a
Borrowing hereunder, it shall give the Administrative Agent notice thereof at
its Notice Office by noon (New York time) on the date three Business Days prior
to each Eurocurrency Rate Loan and by noon (New York time) on the date of each
Base Rate Loan. Each such notice (each a "Notice of Borrowing") shall be in the
form of Exhibit A, appropriately completed to specify the aggregate principal
amount of the Loans to be made pursuant to such Borrowing, the date of such
Borrowing (which shall be a Business Day), whether the Loans being made pursuant
to such Borrowing are to be maintained as Base Rate Loans or Eurocurrency Rate
Loans and, in the case of Eurocurrency Rate Loans, the Interest Period to be
applicable thereto. The Administrative Agent shall promptly give each Bank
notice of such proposed Borrowing, of such Bank's proportionate share thereof
and of the other matters required by the immediately preceding sentence to be
specified in the Notice of Borrowing.
2.04 Disbursement of Funds. No later than 2:00 p.m. (New York time) on the
date specified in each Notice of Borrowing for Base Rate Loans and noon (New
York time) on the date specified in each Notice of Borrowing for Eurocurrency
Rate Loans, each Bank will make available, through such Bank's Applicable
Lending Office, its pro rata portion of each Borrowing requested to be made on
such date by either Borrower under Section 2.01, in immediately available funds
at the Payment Office of the Administrative Agent, and the Administrative Agent
will make available to such Borrower at its Payment Office the aggregate
11
of the amounts so made available by the Banks in immediately available funds.
Unless the Administrative Agent shall have been notified by any Bank prior to
the date of Borrowing that such Bank does not intend to make available to the
Administrative Agent such Bank's portion of any Borrowing to be made on such
date, the Administrative Agent may assume that such Bank has made such amount
available to the Administrative Agent on such date of Borrowing and the
Administrative Agent may, in reliance upon such assumption, make available to
the relevant Borrower a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such Bank, the
Administrative Agent shall be entitled to recover such corresponding amount from
such Bank on demand. If such Bank does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify the relevant Borrower and such Borrower shall
immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover on demand from such Bank
or the relevant Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to such Borrower until the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (i) if recovered from such Bank, the cost to the Administrative
Agent of funding the relevant amount and (ii) if recovered from such Borrower,
the then applicable rate for Base Rate Loans or Eurocurrency Rate Loans, as the
case may be. Nothing in this Section 2.04 shall be deemed to release any Bank
from its obligation to make Loans hereunder or to prejudice any rights which the
relevant Borrower may have against any Bank as a result of any failure by such
Bank to make Loans hereunder.
2.05 Notes. (a) (a) The obligation of each Borrower to pay the principal
of, and interest on, the Loans made by each Bank to such Borrower shall be
evidenced by a promissory note duly executed and delivered by such Borrower
substantially in the form of Exhibit B with blanks appropriately completed in
conformity herewith (each, a "Note" and, collectively, the "Notes").
(b) The Note issued to each Bank shall (i) be payable to such Bank and be
dated the date of this Agreement, (ii) mature, with respect to each Loan
evidenced thereby, in the case of a Eurocurrency Rate Loan, on the last day of
its Interest Period, and in the case of a Base Rate Loan, on the Commitment
Termination Date, (iii) bear interest as provided in the appropriate clause of
Section 2.08 in respect of the Base Rate Loans and Eurocurrency Rate Loans, as
the case may be, evidenced thereby and (iv) be entitled to the benefits of this
Agreement and the Guaranty.
(c) [Intentionally Omitted]
(d) [Intentionally Omitted]
(e) [Intentionally Omitted]
(f) Each Bank will note on its internal records the amount of each Loan
made by it and each payment in respect thereof and will prior to any transfer of
its Note endorse on the
12
reverse side thereof the outstanding principal amount of Loans evidenced
thereby. Failure to make any such notation shall not affect the relevant
Borrower's obligations in respect of such Loans.
2.06 Conversions. Each Borrower shall have the option to convert on any
Business Day all or a portion equal to at least $5,000,000 of the outstanding
principal amount of the Base Rate Loans made to such Borrower pursuant to one or
more Borrowings into a Borrowing of Eurocurrency Rate Loans, provided that (i)
no Default or Event of Default is in existence on the date of the conversion and
(ii) no conversion pursuant to this Section 2.06 shall result in a greater
number of Borrowings than is permitted under Section 2.01. Each such conversion
shall be effected by the relevant Borrower by giving the Administrative Agent at
its Notice Office prior to noon (New York time) at least three Business Days'
prior notice (a "Notice of Conversion") specifying the Base Rate Loans to be so
converted and the Interest Period to be applicable thereto. The Administrative
Agent shall give each Bank prompt notice of any such proposed conversion
affecting any of its Base Rate Loans.
2.07 Pro Rata Borrowings. All Borrowings under this Agreement shall be
incurred from the Banks pro rata on the basis of their Commitments. It is
understood that no Bank shall be responsible for any default by any other Bank
of its obligation to make Loans hereunder and that each Bank shall be obligated
to make the Loans provided to be made by it hereunder regardless of the failure
of any other Bank to make its Loans hereunder.
2.08 Interest. (a) Each Borrower agrees to pay interest in respect of the
unpaid principal amount of each Base Rate Loan made to such Borrower from the
date the proceeds thereof are made available to such Borrower until the maturity
thereof (whether by acceleration or otherwise) at a rate per annum which shall
be the Base Rate in effect from time to time.
(b) Each Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurocurrency Rate Loan made to such Borrower from the
date the proceeds thereof are made available to such Borrower until the maturity
thereof (whether by acceleration or otherwise) at a rate per annum which shall,
during the Interest Period applicable thereto, be the Eurocurrency Rate for such
Interest Period plus the Applicable Margin.
(c) [Intentionally Omitted]
(d) [Intentionally Omitted]
(e) Subject to Section 12.09, overdue principal and overdue interest in
respect of each Loan and any other overdue amount payable by any Borrower
hereunder shall bear interest at a rate per annum equal to 2% per annum in
excess of the Base Rate in effect from time to time; provided, however, that no
Loan shall bear interest after maturity at a rate per annum, less than 2% in
excess of the rate of interest applicable thereto at maturity.
(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,
13
September and December, (ii) in respect of each Eurocurrency Rate Loan, on the
last day of the Interest Period applicable thereto and, in the case of an
Interest Period in excess of three months, on each date occurring at three month
intervals after the first day of such Interest Period, and (iii) in respect of
each Loan, on any prepayment (on the amount prepaid), at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand.
(g) On each Interest Determination Date, the Administrative Agent shall
determine the interest rate for the Eurocurrency Rate Loans for which such
determination is being made, and shall promptly notify the relevant Borrower and
the Banks thereof. Each such determination shall, absent manifest error, be
final and conclusive and binding on all parties hereto.
2.09 Interest Periods. At the time it gives any Notice of Borrowing or
Notice of Conversion in respect of the making of, or conversion into any
Eurocurrency Rate Loan, the relevant Borrower shall have the right to elect, by
giving the Administrative Agent notice thereof, the interest period or interest
periods (each, an "Interest Period") applicable to such Eurocurrency Rate Loan,
each of which shall, at the option of such Borrower, be a one, two, three, six
or (subject to availability as determined by 100% of the Banks) nine month
period, provided that: (i) all Eurocurrency Rate Loans comprising a Borrowing
shall at all times have the same Interest Period except as otherwise required by
Section 2.10(b); (ii) the Interest Period for any Eurocurrency Rate Loan shall
commence on the date of Borrowing of such Loan (including the date of any
conversion of a Base Rate Loan into Eurodollar Rate Loan); (iii) if the Interest
Period relating to a Eurocurrency Rate Loan begins on a day for which there is
no numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day of such
calendar month; (iv) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, however, that if the Interest Period for a
Eurocurrency Rate Loan would otherwise expire on a day which is not a Business
Day but is a day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding Business Day; and
(v) no Interest Period shall extend beyond the Commitment Termination Date.
2.10 Increased Costs, Illegality, etc. (a) In the event that any Bank
shall have determined (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the London
interbank market for deposits in Dollars, adequate and fair means do not
exist for ascertaining the applicable interest rate on the basis provided
for in the definition of Eurocurrency Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurocurrency Rate Loan because of (x) any change since the date hereof
in any applicable law or
14
governmental rule, regulation, order or request (whether or not having the
force of law) (or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule,
regulation, order or request), such as, for example, but not limited to,
(1) a change in the basis of taxation of payments to any Bank or its
Applicable Lending office of the principal of or interest on the Notes or
any other amounts payable hereunder (except for changes in the rate of tax
on, or determined by reference to, the net income or profits of such Bank
or its Applicable Lending Office imposed by any jurisdiction in which its
principal office or Applicable Lending Office is located) or (2) a change
in official reserve requirements, but, in all events, excluding reserves
required under Regulation D to the extent included in the computation of
the Eurocurrency Rate, and/or (y) other circumstances affecting such Bank
or the interbank Eurocurrency market, or the position of such Bank in such
market; or
(iii) at any time, that the making of any Eurocurrency Rate Loan has
been made (x) unlawful by any law or governmental rule, regulation or
order, (y) impossible by compliance by such Bank with any governmental
request (whether or not having force of law) or (z) impracticable as a
result of a contingency occurring after the date of this Agreement which
materially and adversely affects the London interbank market for Dollar
deposits;
then, and in any such event, such Bank (or the Administrative Agent, in the case
of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrowers, accompanied by an explanation of the basis therefor,
and, except in the case of clause (i) above, to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the other Banks). Thereafter (x) in the case of clause (i) above,
Eurocurrency Rate Loans of the maturities identified by the Administrative Agent
in such notice as unavailable shall no longer be available until such time as
the Administrative Agent notifies the relevant Borrower and the Banks that the
circumstances giving rise to such notice by the Administrative Agent no longer
exist, and any Notice of Borrowing or Notice of Conversion given by the relevant
Borrower with respect to its affected Eurocurrency Rate Loans which have not yet
been incurred (including by way of conversion) shall be deemed rescinded by such
Borrower, (y) in the case of clause (ii) above, the Borrower to whom the
Eurocurrency Rate Loan was made shall pay to such Bank, upon written demand
therefor, such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Bank in its sole
discretion shall determine) as shall be required to compensate such Bank for
such increased costs or reductions in amounts received or receivable hereunder
(a written notice as to the additional amounts owed to such Bank, showing the
basis for the calculation thereof, certified to such Borrower by such Bank
shall, absent manifest error, be final and conclusive and binding on all the
parties hereto) and (z) in the case of clause (iii) above, take one of the
actions specified in Section 2.10(b) as promptly as possible and, in any event,
within the time period required by law.
(b) At any time that any Eurocurrency Rate Loan is affected by the
circumstances described in Section 2.10(a)(ii) or (iii), the Borrower to whom
such Loan was
15
made may (and in the case of a Eurocurrency Rate Loan affected by the
circumstances described in Section 2.10(a)(iii) shall) either (i) if the
affected Loan is then being made initially or pursuant to a conversion cancel
said Borrowing by giving the Administrative Agent telephonic notice (confirmed
in writing) of the cancellation on the same date that such Borrower was notified
by the Bank or the Administrative Agent pursuant to Section 2.10(a)(ii) or (iii)
or (ii) if the affected Eurocurrency Rate Loan is then outstanding, upon at
least three Business Days' written notice to the Administrative Agent, prepay
the Eurocurrency Rate Loans of the affected Bank and reborrow the same as Base
Rate Loans, provided that, if more than one Bank is affected at any time, then
all affected Banks must be treated the same pursuant to this Section 2.10(b).
(c) If any Bank determines at any time that any applicable law or
governmental rule, regulation order or request (whether or not having the force
of law) concerning capital adequacy, or any change in interpretation or
administration thereof by any governmental authority, central bank or comparable
agency, which shall have become effective or applicable after the date hereof,
will have the effect of increasing the amount of capital required or expected to
be maintained by such Bank or a holding company of which such Bank is a
Subsidiary based on the existence of such Bank's Commitment hereunder or its
obligations hereunder, then the Borrowers shall pay to such Bank upon its
written demand therefor, such additional amounts as shall be required to
compensate such Bank or such holding company for the increased cost to such Bank
as a result of such increase of capital; such obligations of the Borrowers shall
be joint and several. In determining such additional amounts, each Bank will act
reasonably and in good faith and will use averaging and attribution methods
which are reasonable, provided that such Bank's determination of compensation
owing under this Section 2.10(c) shall, absent manifest error, be final and
conclusive and binding on all the parties hereto. Each Bank, upon determining
that any additional amounts will be payable pursuant to this Section 2.10(c),
will give prompt written notice thereof to the Borrowers, which notice shall
show the basis for calculation of such additional amounts, although the failure
to give any such notice shall not release or diminish any of the Borrowers'
obligations to pay additional amounts pursuant to this Section 2.10(c), absent
manifest error.
2.11 Compensation. Each Borrower shall compensate each Bank, upon its
written request (which request shall set forth the basis for requesting such
compensation), for all reasonable losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Bank to
fund its Eurocurrency Rate Loans) which such Bank may sustain: (i) if for any
reason (other than a default by such Bank or the Administrative Agent) a
Borrowing of Eurocurrency Rate Loans does not occur on a date specified therefor
in a Notice of Borrowing or Notice of Conversion (whether or not withdrawn by
the relevant Borrower or deemed withdrawn 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) occurs on a date which is not
the last day of the Interest Period with respect thereto; (iii) if any
prepayment of any of its Eurocurrency Rate Loans is not made on any date
specified in a notice of prepayment given by the relevant Borrower; or (iv) as a
consequence of (x) any other default by the relevant Borrower
16
to repay its Loans when required by the terms of this Agreement or any Note of
such Bank or (y) any prepayment made pursuant to Section 2.10(b).
2.12 Change of Applicable Lending Office. Each Bank agrees that, upon the
occurrence of any event giving rise to the operation of or a payment obligation
of either Borrower under Section 2.10(a)(ii) or (iii), 2.10(c) or 5.04 with
respect to such Bank, such Bank 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 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 [Intentionally Omitted]
2.14 [Intentionally Omitted]
2.15 [Intentionally Omitted]
Section 3. [Intentionally Omitted]
Section 4. Fees; Termination or Reduction of Commitments; Commitment
Termination Date; Extension of Commitments; Increase of Commitments.
4.01 Fees. (a) (a) The Borrowers jointly and severally agree to pay to the
Administrative Agent on the dates set forth below, for distribution to the
Banks, a facility fee (the "Facility Fee") for the period from the date of this
Agreement until the Commitment Termination Date (or such earlier date as the
Total Commitment shall have been terminated) computed at the Applicable Facility
Fee Rate on the Total Commitment. Accrued Facility Fees shall be due and payable
quarterly in arrears on the third Business Day of each April, July, October and
January of each year, for the calendar quarter ending most recently prior to
such payment date, and on the Commitment Termination Date or upon such earlier
date as the Total Commitment shall be terminated.
(b) The Borrowers jointly and severally agree to pay to the Administrative
Agent on the date of this Agreement, for distribution to each Bank, such fees as
may be agreed in writing between the Borrowers, the Administrative Agent and the
Banks.
(c) [Intentionally Omitted]
(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.
17
4.02 Termination or Reduction of Commitments. (a) (a) On the Commitment
Termination Date, the Total Commitment (and the Commitment of each Bank) 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 any such reduction or termination must be applied to
reduce the Total Commitment on a pro rata basis and (ii) no such reduction of
the Total Commitment shall reduce the Total Commitment to less than the
aggregate amount of the Loans then outstanding.
4.03 Commitment Termination Date; Extension of Commitments. (a) The
"Commitment Termination Date" shall be April 28, 2000 or such later date to
which the Commitment Termination Date has been extended pursuant to this Section
4.03.
(b) The Guarantor may, by notice to the Administrative Agent (which shall
promptly so notify the Banks) given not earlier than 60 days and not later than
45 days before the Commitment Termination Date then in effect (the "Existing
Commitment Termination Date"), request that the Banks extend the Commitment
Termination Date for an additional 364 days from the Consent Date (as
hereinafter defined). Such request shall be accompanied by a certificate of a
senior officer of the Guarantor stating that no Default or Event of Default has
occurred and is continuing and that since the date of the annual consolidated
financial statements received by the Banks pursuant to Section 7(a) of the
Guaranty most immediately prior to the date of such request, there has been no
material adverse change in the business, operations, property, assets, condition
(financial or otherwise) or (to the knowledge of the Guarantor) prospects of the
Guarantor or of the Guarantor and its Subsidiaries taken as a whole. Each Bank
which, in its sole discretion, agrees to so extend the Commitment Termination
Date and its Commitment (an "Extending Bank") shall notify the Administrative
Agent in writing of such Bank's agreement to such extension not earlier than 45
days and not later than 35 days prior to the Existing Commitment Termination
Date, such notice to be revocable until the Consent Date, whereupon it will
become irrevocable. Any Bank that fails to so notify the Administrative Agent
shall be deemed to have declined to agree to the requested extension (such
Banks, together with such Banks as shall have notified the Administrative Agent
of their decision not to so extend the Commitment Termination Date and their
respective Commitments, the "Non-Extending Banks"). The Administrative Agent
shall promptly, and in any event not later than 30 days prior to the Existing
Commitment Termination Date (the "Consent Date"), notify the Guarantor of the
Banks' respective decisions.
(c) The Guarantor shall have the right, during the period commencing on
the Consent Date and ending three Business Days prior to the Existing Commitment
Termination Date (the "Determination Date"), to replace the Commitments of the
Non-Extending Banks with such additional Commitments as the Extending Banks may
irrevocably agree, by notice to the
18
Administrative Agent, to make. The Administrative Agent shall promptly give the
Guarantor notice of any such irrevocable agreement. If the aggregate amount of
such additional Commitments from Extending Banks is less than the aggregate
amount of the Commitments of the Non-Extending Banks, the Guarantor shall have
the right to add to this Agreement one or more new banks to replace such
difference in Commitments (each Extending Bank so agreeing and each such new
bank, an "Additional Commitment Bank"). Each Additional Commitment Bank shall
enter into an agreement in form and substance satisfactory to the Guarantor and
the Administrative Agent pursuant to which such Additional Commitment Bank
shall, effective as of the Existing Commitment Termination Date, have undertaken
a Commitment (which, if such Additional Commitment Bank is an Extending Bank,
shall be in addition to such Extending Bank's Commitment hereunder on such
date).
(d) If on the Determination Date (i) the sum of the total Commitments of
the Extending Banks and the total Commitments of the Additional Commitment Banks
is more than 50% of the Commitments in effect immediately prior to the Existing
Commitment Termination Date and (ii) no Default or Event of Default has occurred
and is continuing, then, effective as of the Existing Commitment Termination
Date, the Commitment Termination Date shall be extended to the date 364 days
after the Consent Date (except that, if the date to which the Commitment
Termination Date is to be extended is not a Business Day, the Commitment
Termination Date as so extended shall be the next preceding Business Day) and
each Additional Commitment Bank shall thereupon become a "Bank" for all purposes
of this Agreement, the Commitment of each Additional Commitment Bank which is an
Extending Bank shall be increased in accordance with its agreement referred to
in Section 4.03(c) and the respective Commitments of the other Extending Banks
shall continue to be as they were before such extension became effective. The
Administrative Agent shall promptly give the Banks, the Borrowers and the
Guarantor written notice of each extension effected pursuant to this Section
4.03, the post-extension levels of the Commitments of the various Banks and the
Commitment Termination Date as extended.
(e) The Commitment of each Non-Extending Bank shall terminate on the
Existing Commitment Termination Date and each Non-Extending Bank shall be paid
in full all amounts owing to it hereunder and remaining unpaid on or before the
Existing Commitment Termination Date.
4.04 Increase of Commitments. The Guarantor shall have the right, at any
time prior to the then Existing Commitment Termination Date, to effect an
increase or increases in the Total Commitment to any amount up to $900,000,000;
provided that (i) no Default or Event of Default has occurred and is continuing;
and (ii) one or more of the existing Banks agree, but are not required to agree,
to increase their respective Commitments hereunder and/or one or more new banks,
satisfactory to the Guarantor and reasonably satisfactory to the Administrative
Agent, agree to provide Commitments hereunder. Notice from the Guarantor
requesting such increase shall be given to the Banks, with a copy to the
Administrative Agent, at least three Business Days before the proposed effective
date for such increase. An increase in the Total Commitments
19
pursuant to this Section 4.04 shall not, however, be permitted if the Total
Commitment shall have been reduced pursuant to Section 4.02(b) during the
preceding four months.
Section 5. Prepayments; Payments.
5.01 Voluntary Prepayments. Each Borrower shall have the right to prepay
the Loans without premium or penalty, in whole or in part from time to time on
the following terms and conditions: (i) such Borrower shall give the
Administrative Agent at its Notice Office at least two Business Days' prior
notice (in the case of Eurocurrency Rate Loans) and same-day prior notice (in
the case of Base Rate Loans) of its intent to prepay the Loans, the amount of
such prepayment, the Types of Loans to be prepaid, and, in the case of
Eurocurrency Rate Loans, the specific Borrowing or Borrowings pursuant to which
made, which notice the Administrative Agent shall promptly transmit to each of
the Banks; (ii) each prepayment shall be in an aggregate principal amount of at
least $1,000,000 in the case of Base Rate Loans and $5,000,000 in the case of
Eurocurrency Rate Loans; provided that no partial prepayment made pursuant to
any Borrowing shall reduce the outstanding Loans made pursuant to such Borrowing
to an amount less than $1,000,000 in the case of Base Rate Loans and $5,000,000
in the case of Eurocurrency Rate Loans; (iii) prepayments of Eurocurrency Rate
Loans made pursuant to this Section 5.01 may only be made if at the time of such
prepayment such Borrower shall have paid in full all amounts requested by any of
the Banks pursuant to Section 2.11; and (iv) each prepayment in respect of any
Loans made pursuant to a Borrowing shall be applied pro rata among such Loans.
5.02 Mandatory Prepayments. (a) [Intentionally omitted]
(b) [Intentionally Omitted]
(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) exceeds the Total Commitment as then in effect, the Borrowers shall prepay
principal of the Loans in an amount equal to such excess; provided that any such
prepayment shall be applied first to Base Rate Loans outstanding and second to
Eurocurrency Rate Loans outstanding.
(d) With respect to each prepayment of Loans required by this Section
5.02, the Borrowers may, subject to Section 2.01(c), designate the specific
Borrowing or Borrowings to which the prepayment shall be applied; provided that
each prepayment of any Loans made pursuant to a Borrowing shall be applied pro
rata among the Loans in such Borrowing. 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, all payments under this Agreement or any Note shall be made to
the Administrative Agent for account of the Bank or Banks entitled thereto not
later than 3:00 p.m. (New York City time) on the date when due and shall be made
in Dollars in immediately available funds at the Payment Office of the
Administrative Agent. Whenever any payment to be made hereunder or under any
Note shall be stated to be due on a day which is not a Business Day, the due
date
20
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 pursuant to the laws of the jurisdiction (or any
political subdivision or taxing authority thereof or therein) in which the
principal office or Applicable Lending Office of such Bank is located ("Excluded
Taxes") and all interest, penalties or similar liabilities with respect thereto
(collectively, "Taxes"). The Borrowers shall reimburse each Bank, upon the
written request of such Bank, for Excluded Taxes in respect of amounts paid to
or on behalf of such Bank pursuant to the preceding sentence. If any Taxes are
so levied or imposed, the Borrowers agree to pay the full amount of such Taxes
and such additional amounts as may be necessary so that every payment of all
amounts due hereunder or under any Note, after withholding or deduction for or
on account of any Taxes, will not be less than the amount provided for herein or
in such Note. The Borrowers will furnish to the Administrative Agent within 45
days after the date the payment of any Taxes is due pursuant to applicable law
certified copies of tax receipts evidencing such payment by the Borrowers. The
Borrowers will indemnify and hold harmless each Bank, and reimburse such Bank
upon its written request, for the amount of any Taxes so levied or imposed and
paid by such Bank.
(b) Each Bank shall designate an Applicable Lending Office that, on the
date of this Agreement or (in the case of any Person that becomes a Bank
hereunder by means of an assignment) on the date that such Bank becomes a party
hereto, is entitled to a zero rate of (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 the date of this Agreement, 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 of this Agreement, 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 (or
appropriate replacement 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
21
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 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 of this Agreement, or to an
amendment, modification or revocation of an applicable tax treaty or a change in
official position regarding the application or interpretation thereof, in each
case, occurring after the date hereof.
Section 6. Conditions Precedent.
6.01 Effectiveness. The effectiveness of each Bank's Commitment under this
Agreement is subject to the satisfaction of the following conditions on the date
of this Agreement or such other date as is specified below:
(a) Notes. There shall have been delivered to the Administrative Agent for
account of each of the Banks the Note which is to evidence such Bank's Loans.
(b) Opinions of Counsel. For OFI, the Administrative Agent shall have
received (i) from Dewey Ballantine LLP, 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 (some of which matters may, with the
consent of the Administrative Agent, be opined upon by the General Counsel of
the Guarantor), and covering such other matters incident to the transactions
contemplated herein as any Bank may reasonably request, and (ii) from Milbank,
Tweed, Hadley & McCloy LLP, special New York counsel to Citibank, an opinion
addressed to each of the Banks substantially in the form of Exhibit C-2 and
covering such other matters incident to the transactions contemplated herein as
any Bank may reasonably request; for OFL, the Administrative Agent shall have
received (i) from Dewey Ballantine LLP, 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 (ii) 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.
(c) Corporate Documents; Proceedings. (i) For OFI, the Administrative
Agent shall have received a certificate, signed by the President, the Chief
Financial Officer, any Vice President, the Treasurer or any Assistant Treasurer
of OFI, and attested to by the Secretary
22
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.
(ii) 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.
(iii) 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.
(iv) For each Borrower, all corporate and legal proceedings and all
instruments and agreements in connection with the transactions contemplated in
this Agreement and the other Credit Documents shall be satisfactory in form and
substance to the Banks, and the Administrative Agent shall have received all
information and copies of all documents and papers, including records of
corporate proceedings and governmental approvals, if any, which any Bank
reasonably may have requested in connection therewith, such documents and papers
where appropriate to be certified by proper corporate or governmental
authorities.
(d) [Intentionally Omitted]
(e) [Intentionally Omitted]
(f) [Intentionally Omitted]
(g) Guaranty. The Guarantor shall have duly authorized, executed and
delivered a Guaranty in the form of Exhibit E (as modified, supplemented, or
amended from time to time, the "Guaranty"), and the Guaranty shall be in full
force and effect as of the date of this Agreement.
(h) [Intentionally Omitted]
(i) [Intentionally Omitted]
(j) Fees Paid. All Fees payable under this Agreement to the Banks on the
date of this Agreement shall have been paid by the Borrowers.
6.02 Borrowings. Each Borrowing of each Borrower is subject (except and to
the extent hereinafter indicated) to the satisfaction of the following
conditions with each
23
Borrowing constituting a representation and warranty by such Borrower that the
conditions specified in paragraph (c) below are then satisfied:
(a) [Intentionally Omitted]
(b) No Default; Representations and Warranties. At the time of each
Borrowing (other than a Borrowing of a Eurocurrency Rate Loan which, if given
effect, would not increase the aggregate amount of outstanding Eurocurrency Rate
Loans of any Bank) and also after giving effect thereto (i) there shall exist no
Default and (ii) all representations and warranties contained herein or in the
other Credit Documents (except the third sentence of Section 6(e) of the
Guaranty) shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and as of
the date of such Borrowing, other than representations and warranties stated to
be correct as of a date certain which shall have been true and correct in all
material respects on such date certain.
(c) Subsequent Legal Opinions. If, at the time of any Borrowing for either
Borrower, any Bank shall have requested same, the Administrative Agent shall
have received from Dewey Ballantine LLP, special New York counsel to the
Borrowers and the Guarantor, and/or Macfarlanes, special English counsel to OFL,
or such other counsel as shall be reasonably satisfactory to the Required Banks,
an opinion in form and substance satisfactory to the Banks, addressed to the
Banks, and dated the date of such Borrowing, covering, specifically, such of the
matters set forth in the opinions of counsel required to be delivered pursuant
to Section 6.01(b) above with respect to such Borrowing of such Borrower as the
requesting Bank shall specify.
(d) Guaranty. The Guaranty shall be in full force and effect as of the
date of each Borrowing.
(e) [Intentionally Omitted]
The acceptance of the benefits of each Borrowing shall constitute a
representation and warranty by such Borrower to each of the Banks that all the
conditions specified in Section 6.02(b) above 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 to enter into this Agreement and to make the Loans, 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 of this Agreement, which
shall survive the execution and delivery of this Agreement and the Notes and the
making of the Loans.
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
24
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 duly executed and delivered each of the Credit
Documents to which it is party, and each of such Credit Documents constitutes
its legal, valid and binding obligation enforceable in accordance with its terms
except as the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting creditors' rights
generally and by general equitable principles (regardless of whether the issue
of enforceability is considered in a proceeding in equity or at law).
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.
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.
25
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 (including, without limitation, all information
contained in the Credit Documents) for purposes of or in connection with this
Agreement or any transaction contemplated herein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of such
Borrower in writing to any Bank will be, true and accurate in all material
respects on the date as of which such information is dated or certified and does
not or will not omit to state any fact 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 shall
be used by each Borrower for general corporate purposes, including the repayment
of maturing Commercial Paper of such Borrower and acquisitions. No part of the
proceeds of any Loan will be used by such Borrower to purchase or carry any
Margin Stock or to extend credit to others for the purpose of purchasing or
carrying any Margin Stock in violation of Regulation T, U or X of the Board of
Governors of the Federal Reserve Board. Not more than 25% of the value of the
assets of such Borrower or such Borrower and its Subsidiaries subject to the
restrictions contained in Section 9 of this Agreement constitute Margin Stock
and, at the time of each Borrowing, not more than 25% of the value of the assets
of such Borrower or such Borrower and its Subsidiaries subject to the
restrictions contained in Section 9 of this Agreement will constitute Margin
Stock. Notwithstanding the foregoing provisions of this Section 7.07, each
Borrower will not use the proceeds of any Loan to purchase the capital stock of
any corporation in a transaction, or as part of a series of transactions, (i)
the purpose of which is, at the time of any such purchase, to acquire control of
such corporation or (ii) the result of which is the ownership by the Guarantor
and its Subsidiaries (including, without limitation, such Borrower) of 10% or
more of the capital stock of such corporation, in either case if the Board of
Directors of such corporation has publicly announced its opposition to such
transaction.
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
26
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 29, 1999, the corporations listed on
Schedule III are the only Subsidiaries of the Borrowers. Schedule III correctly
sets forth, as of March 29, 1999, 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, if the aggregate, have a material adverse effect on
the business, operations, property, assets, condition (financial or otherwise)
or (to the knowledge of such Borrower) prospects of such Borrower or of such
Borrower and its Subsidiaries taken as a whole.
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 [Intentionally Omitted]
7.15 Year 2000 Issues. The Borrowers have reviewed the mission critical
systems in the operations of the Guarantor and its Subsidiaries with a view to
assessing the potential impact of the Year 2000 Problem on the businesses of the
Guarantor and its Subsidiaries. Based on such review and on actions being taken
as part of the Guarantor's Year 2000 program, the Borrowers have no reason to
believe that a material adverse effect on the Guarantor and its Subsidiaries
taken as a whole will result from a Year 2000 Problem. For purposes of this
Section, "Year 2000 Problem" means any significant risk that computer hardware
or software used in the business or operations of the Guarantor and its
Subsidiaries will not, in the case of dates or time periods occurring after
December 31, 1999, function at least as effectively as in the case of dates or
time periods occurring prior to January 1, 2000.
27
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 and the Loans and Notes,
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 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 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 accounts in which
full, true and correct entries in conformity with generally accepted accounting
principles and all requirements of law shall be made of all dealings and
transactions in relation to its business and activities. Each Borrower will, and
will cause each of its Subsidiaries to, permit officers and designated
representatives of the Administrative Agent or any Bank to visit and inspect,
under guidance of officers of such Borrower or such Subsidiary, any of the
properties of such Borrower or such Subsidiary, and to examine the books of
record and accounts of such Borrower or such Subsidiary and discuss the affairs,
finances and accounts of such Borrower or such Subsidiary with, and be advised
as to the same by, its and their officers, all at such reasonable times and
intervals and to such reasonable extent as the Administrative Agent or such Bank
may request.
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,
licenses and patents; provided, however, that nothing in this Section 8.03 shall
prevent (i) the withdrawal by such Borrower or any of its
28
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 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.
29
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 and the Loans and Notes, 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 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.
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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, (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 [Intentionally Omitted]
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. Event of Default. Upon the occurrence of any of the following
specified events (each an "Event of Default"):
10.01 Payments. (i) Any principal of any Loan or any Note shall not have
been paid when due or (ii) any interest on any Loan or any Note or any Fees or
any other amounts owing hereunder or under any Note with respect thereto shall
not have been paid when due and such payment failure shall continue unremedied
for three or more Business Days; or
31
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 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 Material
Subsidiary shall commence a voluntary case concerning itself under the United
States Bankruptcy Code (the "Bankruptcy Code"); or an involuntary case is
commenced against either Borrower, the Guarantor or any Material Subsidiary, and
the petition is not controverted within 10 days, or is not dismissed within 60
days, after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or substantially all
of the property of either Borrower, the Guarantor or any Material Subsidiary; or
either Borrower, the Guarantor or any Material Subsidiary commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, insolvency or similar law of any jurisdiction whether now or hereafter
in effect relating to such Borrower, the Guarantor or such Material Subsidiary;
or there is commenced against either Borrower, the Guarantor or any Material
Subsidiary any such proceeding which remains undismissed for a period of 60
days; or either Borrower, the Guarantor or any Material Subsidiary is
adjudicated insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or either Borrower, the
Guarantor or any Material Subsidiary suffers any appointment of any custodian or
the like for it or all or substantially all of its property to continue
undischarged or unstayed for a period of 60 days; or either Borrower, the
Guarantor or any Material Subsidiary makes a general
32
assignment for the benefit of creditors; or any corporate action is taken by
either Borrower, the Guarantor or any Material Subsidiary for the purpose of
effecting any of the foregoing; 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 referred to in
Sections 7 (a) - (g) , (1) or (m) of the Guaranty) ; 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;
33
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent may and, upon the written
request of the Required Banks, shall, by written notice to the Borrowers, take
any or all of the following actions, without prejudice to the rights of the
Administrative Agent, any Bank or the holder of any Note to enforce its claims
against the Borrowers (provided that, if an Event of Default specified in
Section 10.05 shall occur with respect to the Borrowers, the result which would
occur upon the giving of written notice by the Administrative Agent to the
Borrowers as specified in clauses (i) and (ii) below shall occur automatically
without the giving of any such notice): (i) declare the Total Commitment
terminated, whereupon the Commitment of each Bank to make Loans hereunder shall
forthwith terminate immediately and any Facility Fees and all other Fees shall
forthwith become due and payable without any other notice of any kind; and/or
(ii) declare the principal of and any accrued interest in respect of all Loans
and the Notes and all obligations owing hereunder and thereunder to be,
whereupon the same shall become, forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrowers.
Section 11. The Administrative Agent; Agents.
11.01 Appointment. The Banks hereby designate Citibank as Administrative
Agent, to act as specified herein and in the other Credit Documents. Each Bank
hereby irrevocably authorizes, and each holder of any Note by the acceptance of
such Note shall be deemed irrevocably to authorize, the Administrative Agent to
take such action on its behalf under the provisions of this Agreement, the other
Credit Documents and any other instruments and agreements referred to herein or
therein and to exercise such powers and to perform such 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 or employees shall be liable for any action taken or omitted by it or
them hereunder or under any other Credit Document or in connection herewith or
therewith, unless caused by its or their gross negligence or willful misconduct.
The duties of the Administrative Agent shall be mechanical and administrative in
nature; the Administrative Agent shall not have by reason of this Agreement or
any other Credit Document a fiduciary relationship in respect of any Bank or the
holder of any Note; and nothing in this Agreement or any other Credit Document,
expressed or implied, is intended to or shall be so construed as to impose upon
the Administrative Agent any obligations in respect of this Agreement or any
other Credit Document except as expressly set forth herein.
11.03 Lack of Reliance on the Administrative Agent. Independently and
without reliance upon the Administrative Agent, each Bank and the holder of each
Note, to the extent it deems appropriate, has made and shall continue to make
its own independent investigation and
34
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 liability to any Person by reason of so refraining.
Without limiting the foregoing, no Bank or the holder of any Note shall have any
right of action whatsoever against the Administrative Agent as a result of the
Administrative Agent's acting or 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
35
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.
11.08 Holders. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment, transfer or endorsement thereof, as the case may be,
shall have been filed with the Administrative Agent. Any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee, assignee or indorsee, as the case may be,
of such Note or of any Note or Notes issued in exchange therefor.
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 Borrowers and the Banks. Such resignation shall take
effect upon the appointment of a successor Administrative Agent pursuant to
clauses (b) and (c) below or as otherwise provided below.
(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 Documentation Agent and the Syndication Agent. The Documentation
Agent and the Syndication Agent so named in this Agreement shall have no rights
or obligations under this Agreement in their respective capacities as the
Documentation Agent and the Syndication Agent.
36
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,
but solely with respect to such capacity.
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 LLP) in connection with the preparation, execution and delivery of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein and any amendment, waiver of consent relating
hereto or thereto and (y) of the Administrative Agent and each of the Banks in
connection with the enforcement of this Agreement and the other Credit Documents
and the documents and instruments referred to herein and therein (including,
without limitation, the fees and disbursements of counsel for the Administrative
Agent and for each of the Banks); (ii) pay and hold each of the Banks harmless
from and against any and all present and future stamp and other similar taxes
with respect to the foregoing matters and save each of the Banks harmless from
and against any and all liabilities with respect to or resulting from any delay
or omission (other than to the extent attributable to such Bank) to pay such
taxes; and (iii) indemnify each of the Administrative Agent and each Bank, its
affiliates and their respective officers, directors, employees, representatives
and agents from and hold each of them harmless against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, suits,
costs, expenses and disbursements incurred by any of them as a result of, or
arising out of, or in any way related to, or by reason of, any investigation,
litigation or other proceeding (whether or not the Administrative Agent or any
Bank is a party thereto) related to the entering into and/or performance of this
Agreement or any other Credit Document or the use or proposed use of the
proceeds of any Loans or the consummation of any transactions contemplated
herein or in any other Credit Document, including, without limitation, the fees
and disbursements of counsel incurred in connection with any such investigation,
litigation or other proceeding (but excluding any such liabilities, obligations,
losses, etc., to the extent incurred by reason of the gross negligence or
willful misconduct of the Person to be indemnified).
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 Bank and the
Administrative Agent (each, together with its affiliates, a "Relevant
Institution") is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to the Borrowers or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Relevant Institution (including,
without limitation, by branches and agencies of such Relevant Institution
wherever located) to or for the credit or the account of a Borrower against and
on account of the Obligations and liabilities of such Borrower to such Relevant
Institution under this Agreement or under any of the other Credit Documents,
including, without limitation, all
37
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 Administrative Agent, at its Notice Office; or, as to the Borrowers or
the Administrative Agent, at such other address as shall be designated by such
party in a written notice to the other parties hereto and, as to each other
party, at such other address as shall be designated by such party in a written
notice to the Borrowers and the Administrative Agent. All such notices and
communications shall, when mailed, telegraphed, telexed, telecopied, or cabled
or sent by overnight courier, be effective when deposited in the mails,
delivered to the telegraph company, cable company or overnight courier, as the
case may be, or sent by telex or telecopier, except that notices and
communications to the Administrative Agent and notices and communications sent
by mail to any party, shall not be effective until received.
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 their respective rights or obligations hereunder
without the prior written consent of the Banks; and provided, further, that,
although any Bank may transfer, assign or grant participations in its rights
hereunder and under the Notes, such Bank shall remain a "Bank" for all purposes
hereunder (and may not transfer or assign its Commitment hereunder except as
provided in Section 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.
38
(b) Notwithstanding the foregoing, any Bank may, with prior written
consent of the Guarantor (whose consent shall not be unreasonably withheld),
assign all, or if less than all, a portion equal to at least $5,000,000 in the
aggregate of its Commitment (and related outstanding principal amount of Loans)
hereunder to one or more commercial banks or other financial institutions
engaged in the business of lending money or acquiring debt securities; provided
that (i) at such time Schedule I hereto shall be deemed modified to reflect the
Commitments of such new Bank and of the existing Banks, (ii) upon surrender of
the old Notes, 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 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) [Intentionally Omitted]
(d) Notwithstanding anything to the contrary contained herein, each Bank
shall be entitled to pledge its Loans and/or Notes hereunder to a Federal
Reserve Bank in support of borrowings made by such Bank from such Federal
Reserve Bank.
(e) Notwithstanding anything to the contrary contained herein, subject to
the prior written consent of the Guarantor (which shall not be unreasonably
withheld), any Bank (a "Granting Bank"), may grant to a special purpose funding
vehicle (an "SPC"), identified as such in writing from time to time by the
Granting Bank to the Administrative Agent, the Guarantor and the Borrowers, the
option to provide to the Borrowers all or any part of any Loan that such
Granting Bank would otherwise be obligated to make to the Borrower pursuant to
this Agreement; provided that (i) nothing herein shall constitute a commitment
by any SPC to make any Loan, and (ii) if an SPC elects not to exercise such
option or otherwise fails or is unable to provide all or any part of such Loan,
the Granting Bank shall be obligated to make such Loan pursuant to the terms
hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of
the Granting Bank to the same extent, and as if, such Loan were made by such
Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for
any indemnity or payment under this Agreement for which a Bank would otherwise
be liable for so long as, and to the extent, the Granting Bank provides such
indemnity or makes such payment. In furtherance of the foregoing, each Borrower
and the Guarantor hereby agree (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one day after the
39
payment in full of all outstanding commercial paper or other senior indebtedness
of any SPC, it will not institute against, or join any other Person in
instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any
State thereof.
12.05 No Waiver; Remedies Cumulative. No failure or delay on the part of
the Administrative Agent or any Bank or the holder of any Note in exercising any
right, power or privilege hereunder under any other Credit Document and no
course of dealing between the Borrowers, the Administrative Agent or any Bank or
the holder of any Note shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, power or privilege hereunder or under any
other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights, powers and remedies herein or in any other Credit Document expressly
provided are cumulative and not exclusive of any rights, powers or remedies
which the Administrative Agent or any Bank or the holder of any Note would
otherwise have. No notice to or demand on the Borrowers in any case shall
entitle the Borrowers to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Administrative
Agent or any Bank or the holder of any Note to any other or further action in
any circumstances without notice or demand.
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 pro rata based upon their respective shares, if any, of the
Obligations with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Facility Fees or other Fees, of a sum which with respect to the
related sum or sums received by other Banks is in a greater proportion than the
total amount of such Obligation then owed and due to such Bank bears to the
total amount of such Obligation then owed and due to all of the Banks
immediately prior to such receipt, then such Bank receiving such excess payment
shall purchase for cash without recourse or warranty from the other Banks an
interest in the Obligations of the Borrowers to such Banks in such amount as
shall result in a proportional participation by all the Banks in such amount;
provided, however, that if all or any portion of such excess amount is
thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest;
and provided, further, that a Bank's obligations pursuant to this Section
12.06(b) shall not be interpreted to apply to any portion of the Fee which is
payable to such Bank pursuant to Section 4.01(b) hereof and is not payable to
other Banks because of the Banks' differing Commitment levels.
40
12.07 Calculations; Computations. All computations of interest and
Facility Fees hereunder shall be made on the basis of a year of 360 days
(365/366 days in the case of interest on Base Rate Loans) for the actual number
of days (including the first day but excluding the last day) occurring in the
period for which such interest or Facility Fees are payable. Notwithstanding the
foregoing, for each day that interest is calculated by reference to the Federal
Funds Rate, such interest shall be computed on the basis of a year of 360 days.
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 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 Payment Denominations. All payments of principal and interest on any
Loan and other amounts to be paid by any Borrower under this Agreement shall be
made in Dollars. The obligation of the Borrowers to make payment in Dollars of
the principal of and interest on the Notes and any other amounts due hereunder
or under any other Credit Document to the Payment Office of the Administrative
Agent as provided in Section 5.03 shall not be discharged or satisfied by any
tender, or any recovery pursuant to any judgment, which is
41
expressed in or converted into any currency other than Dollars, except to the
extent such tender or recovery shall result in the actual receipt by the
Administrative Agent at its Payment Office on behalf of the Banks or holders of
the Notes of the full amount of Dollars expressed to be payable in respect of
the principal of and interest on the Notes and all other amounts due hereunder
or under any other Credit Document. The obligation of the Borrowers to make
payments in Dollars as aforesaid shall be enforceable as an alternative or
additional cause of action for the purpose of recovery in Dollars of the amount,
if any, by which such actual receipt shall fall short of the full amount of
Dollars expressed to be payable in respect of the principal of and interest on
the Notes and any other amounts due under any other Credit Document, and shall
not be affected by judgment being obtained for any other sums due under this
Agreement or under any other Credit Document.
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 [Intentionally Omitted]
12.12 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
12.13 Amendment or Waiver. None of this Agreement or any other Credit
Document nor any terms hereof or thereof may be changed, waived, discharged or
terminated unless such change, waiver, discharge or termination is in writing
signed by the Required Banks; provided, however, that: no such change, waiver,
discharge or termination shall, without the consent of each Bank, (i) extend the
Commitment Termination Date (except as provided in Section 4.03) or the final
maturity of any Loan or Note or reduce the rate or extend the time of payment of
interest or Fees thereon, or reduce the principal amount thereof, or increase
the Commitment of any Bank (except as provided in Section 4.04) over the amount
thereof then in effect (it being understood that a waiver of any Default or
Event of Default or of a mandatory reduction in the Total Commitment shall not
constitute a change in the terms of any Commitment of any Bank) , (ii) release
the Guarantor from its obligations under the Guaranty, (iii) amend, modify or
waive any provision of this Section 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, or (v) consent to the assignment or transfer by the Borrowers of
any of their rights and obligations under this Agreement.
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.
42
12.15 Domicile of Loans. Subject to Section 5.04(b), but notwithstanding
Section 12.04 (b), each Bank may transfer and carry its Loans at, to or for the
account of any office, Subsidiary or Affiliate of such Bank; provided, that each
Bank will use its best efforts not to effect a transfer of its Loans to an
Applicable Lending Office which would give rise to the operation of Section
2.10(a) (ii) or (iii) or 2.10(c) unless in its sole discretion such Bank finds
that such nontransfer would be disadvantageous to it.
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, (a) a
Bank shall not be entitled to payment of any amount under any such Section from
a Borrower unless such Bank is seeking payment from other borrowers similarly
situated in respect of the relevant increased costs, Taxes, losses, expenses or
liabilities, reduction in amounts received or receivable or reduction in return
on capital, and (b) unless a Bank gives notice to the Borrowers that they are
obligated to pay an amount under any such Section within six months after the
later of (x) the date such Bank incurs the respective increased costs, Taxes,
loss, expense or liability, reduction in amounts received or receivable or
reduction in return on capital or (y) the date such Bank has actual knowledge of
its incurrence of the respective increased costs, Taxes, loss, expense or
liability, reductions in amounts received or receivable or reduction in return
on capital, then such Bank shall only be entitled to be compensated for such
amount by the Borrowers pursuant to said Section 2.10, 2.11 or 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 six months prior to such Bank's
notice to the Borrowers that it is obligated to pay the respective amounts
pursuant to said Section 2.10, 2.11 or 5.04, as the case may be. This Section
12.16 shall have no applicability to any Section of this Agreement other than
said Sections 2.10, 2.11 and 5.04.
43
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: /s/ Dennis E. Hewitt
-----------------------
Name: Dennis E. Hewitt
Title: Treasurer
OMNICOM FINANCE LIMITED
By: /s/ Dennis E. Hewitt
-----------------------
Name: Dennis E. Hewitt
Title: Director
By: /s/ Barry J. Wagner
-----------------------
Name: Barry J. Wagner
Title: Director
CITIBANK, N.A.,
as Administrative Agent
By: /s/ Carolyn A. Kee
---------------------
Name: Carolyn A. Kee
Title Vice President
THE BANK OF NOVA SCOTIA,
as Documentation Agent
By: /s/ J.R. Trimble
-------------------
Name: J.R. Trimble
Title: Senior Relationship Manager
ISTITUTO BANCARIO SAN PAOLO DI TORINO
ISTITUTO MOBILIARE ITALIANO SPA,
as Syndication Agent
By: /s/ Robert Wurster Carlo Persico
--------------------------------------
Name: Robert Wurster Carlo Persico
Title: 1st V.P. D.G.M.
BANK OF NEW YORK
By: /s/ Georgia Pan-Kita
-----------------------
Name: Georgia Pan-Kita
Title: VP
CITIBANK N.A.
By: /s/ Carolyn A. Kee
---------------------
Name: Carolyn A. Kee
Title: Vice President
DRESDNER BANK AG, New York &
Grand Cayman Branches
By: /s/ Laura G. Fazio
---------------------
Name: Laura G. Fazio
Title: First Vice President
By: /s/ Helen Ng, P.E.
--------------------
Name: Helen Ng, P.E.
Title: Assistant Vice President
FLEET BANK, N.A.
By: /s/ Thomas J. Levy
----------------------
Name: Thomas J. Levy
Title: Vice President
HSBC BANK USA
By: /s/ D.M. Zieske
------------------
Name: D.M. Zieske
Title: Assistant Vice President
ISTITUTO BANCARIO SAN PAOLO DI TORINO
ISTITUTO MOBILIARE ITALIANO S.p.A.
By: /s/ Robert Wurster Carlo Persico
---------------------------------------
Name: Robert Wurster Carlo Persico
Title: 1st V.P. D.G.M.
MELLON BANK
By: /s/ Maria N. Sisto
---------------------
Name: Maria N. Sisto
Title: A.V.P.
PNC BANK N.A.
By: /s/ Tom Colwell
------------------
Name: Tom Colwell
Title: Vice President
SCOTIABANC INC.
By: /s/ W.J. Brown
-----------------
Name: W.J. Brown
Title: Managing Director
SVENSKA HANDELSBANKEN
By: /s/ Paul Breakspear
----------------------
Name: Paul Breakspear
Title: Account Manager
By: /s/ Shane Thorne
-------------------
Name: Shane Thorne
Title Deputy Head
THE BANK OF NOVA SCOTIA
By: /s/ J.R. Trimble
-------------------
Name: J.R. Trimble
Title Senior Relationship Manager
THE CHASE MANHATTAN BANK
By: /s/ Bruce E. Langenkamp
--------------------------
Name: Bruce E. Langenkamp
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Stephen E. McDonald
--------------------------
Name: Stephen E. McDonald
Title: First Vice President
THE SUMITOMO BANK, LTD.
By: /s/ C. Michael Garrido
-------------------------
Name: C. Michael Garrido
Title Senior Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Robert W. Miller
-----------------------
Name: Robert W. Miller
Title: Senior Vice President
WACHOVIA BANK, N.A.
By: /s/ William C. Christie
--------------------------
Name: William C. Christie
Title: Senior Vice President
SCHEDULE I
----------
SCHEDULE OF COMMITMENTS
-----------------------
Name of Bank Commitment
- ------------ ----------
Bank of New York $20,000,000
Citibank, N.A. $100,000,000
Dresdner Bank AG $60,000,000
Fleet Bank, N.A. $50,000,000
HSBC Bank USA $65,000,000
Istituto Bancario San Paolo Di Torino $70,000,000
Istituto Mobiliare Italiano S.p.A.
Mellon Bank $30,000,000
PNC Bank N.A. $30,000,000
Svenska Handelsbanken $30,000,000
The Bank of Nova Scotia/Scotiabanc Inc. $75,000,000
The Chase Manhattan Bank $60,000,000
The First National Bank of Chicago $30,000,000
The Sumitomo Bank, Ltd. $50,000,000
U.S. Bank National Association $20,000,000
Wachovia Bank, N.A. $60,000,000
-----------
Total $750,000,000.00
===============
SCHEDULE II
-----------
BANK ADDRESSES AND LENDING OFFICES
----------------------------------
Base Rate Eurocurrency
Name of Bank Lending Office Lending Office
- ------------ -------------- --------------
The Bank of New York Same as Name of Bank Same as Name of Bank
1 Wall Street
New York Corp. Div. - 22nd Floor
New York, New York 10286
Attention: Georgia Pan-Kita
Citibank, N.A. (Notices) Citibank N.A. (Credit Matters) Same as Base Rate Lending Office
Two Penns Way, Suite 200 399 Park Avenue
New Castle, Delaware 19720 8th Floor/Zone 5
Attention: Carlos Lopez New York, New York 10043
Attention: Eric Huttner
Dresdner Bank AG Same as Name of Bank Same as Name of Bank
75 Wall Street - 30th Floor
New York, New York 10005-2889
Attention: Laura Fazio
Fleet Bank, N.A. Same as Name of Bank Same as Name of Bank
1185 Avenue of the Americas, 2nd Floor
New York, New York 10036
Attention: Thomas Levy
HSBC Bank USA Same as Name of Bank Same as Name of Bank
140 Broadway - 4th Floor
New York, New York 10005-1196
Attention: Diane Zieske
Istituto Bancario San Paolo Di Torino Same as Name of Bank Same as Name of Bank
Istituto Mobiliare Italiano S.p.A.
245 Park Avenue - 35th Floor
New York, New York 10167
Attention: Robert Wurster
Mellon Bank Same as Name of Bank Same as Name of Bank
1735 Market Street - 7th Floor
Philadelphia, Pennsylvania 19103
Attention: Maria Sisto
Base Rate Eurocurrency
Name of Bank Lending Office Lending Office
- ------------ -------------- --------------
PNC Bank N.A. PNC Bank N.A. PNC Bank N.A.
345 Park Avenue - 29th Floor 620 Liberty Avenue 249 5th Avenue
New York, New York 10154 Pittsburgh, Pennsylvania 15222 Pittsburgh, Pennsylvania 15222
Attention: Donald Davis Attention: Hillary Guttman Attention: Tammy Witucki
Svenska Handelsbanken Same as Name of Bank Same as Name of Bank
Trinity Tower
9 Thomas Moore Street
London E19WY, United Kingdom
Attention: Paul Breakspear
The Bank of Nova Scotia Same as Name of Bank Same as Name of Bank
One Liberty Plaza - 26th Floor
New York, New York 10006
Attention: Kevin McCarthy
The Chase Manhattan Bank Same as Name of Bank Same as Name of Bank
270 Park Avenue
New York, New York 10017
Attention: Bruce Langenkamp
The First National Bank of Chicago Same as Name of Bank Same as Name of Bank
153 West 51st Street
New York, New York 10019
Attention: Marguerite Burtzlaff
The Sumitomo Bank, Ltd. Same as Name of Bank Same as Name of Bank
277 Park Avenue - 6th Floor
New York, New York 10172
Attention: Leo Pagarigan
U.S. Bank National Association Same as Name of Bank Same as Name of Bank
601 Second Avenue South - 5th Floor
MPFP0510
Minneapolis, Minnesota 55402-4302
Attention: Robert Miller
Wachovia Bank, N.A. Same as Name of Bank Same as Name of Bank
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: William Christie
SCHEDULE III
------------
SUBSIDIARIES OF THE BORROWERS AS OF MARCH 29, 1999
--------------------------------------------------
None.