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Title: |
364-Day Credit Agreement |
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Entities: |
ABN AMRO Bank N.V.; Bank of Nova Scotia; Barclays Bank plc; Citibank, NA; Fleet National Bank; JPMorgan Chase Bank; McGraw-Hill Companies Inc.; Omnicom Group Inc.; PNC Bank, NA; Salomon Smith Barney Inc.; Smith Barney Inc.; U.S. Bank, NA; Wachovia Bank, NA; Bank of New York; Dewey Ballantine LLP; Shearman & Sterling |
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Date: |
2003 |
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273KB total |
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$58 |
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#424034 |
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364-DAY CREDIT AGREEMENT
Dated as of November 14, 2002
OMNICOM FINANCE INC., a Delaware corporation ("OFI"), OMNICOM CAPITAL
INC., a Connecticut corporation ("OCI"), and OMNICOM FINANCE PLC, a corporation
organized under the laws of England and Wales ("OFP"; OFI, OCI and OFP are each
a "Borrower" and collectively, the "Borrowers"), OMNICOM GROUP INC., a New York
corporation (the "Guarantor"), the banks, financial institutions and other
institutional lenders (the "Initial Lenders") listed on the signature pages
hereof, SALOMON SMITH BARNEY INC., as lead arranger and book manager, and
CITIBANK, N.A. ("Citibank"), as agent (the "Agent") for the Lenders (as
hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" means an advance by a Lender to a Borrower as part of a
Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance
(each of which shall be a "Type" of Advance).
"Affiliate" means, as to any Person, any other Person (other than an
individual) that, directly or indirectly, controls, is controlled by or is
under common control with such Person; provided that, for purposes of
Section 5.01(h), an Affiliate of a Borrower shall include any Person that
(x) is a director or officer of such Person or (y) has the possession,
direct or indirect, of the power to vote 5% or more of the Voting Stock of
such Person. A Person shall be deemed to control another Person if such
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of Voting Stock, by contract or otherwise.
"Agent's Account" means the account of the Agent maintained by the
Agent at Citibank at its office at 388 Greenwich Street, New York, New
York 10013, Account No. 36852248, Attention: Bank Loan Syndications.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance.
"Applicable Margin" means (a) for Base Rate Advances, 0% per annum
and (b) for Eurodollar Rate Advances, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on such
date as set forth below:
--------------------------------------------------------------------------------
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Moody's Eurodollar Rate Advances Eurodollar Rate Advances
Prior to the Term Loan On and After the Term Loan
Conversion Date Conversion Date
--------------------------------------------------------------------------------
Level 1
A+ or A1 or above 0.165% 0.625%
--------------------------------------------------------------------------------
Level 2
A or A2 0.275% 0.750%
--------------------------------------------------------------------------------
{PAGE}
--------------------------------------------------------------------------------
Level 3
A- or A3 0.390% 0.875%
--------------------------------------------------------------------------------
Level 4
BBB+ or Baa1 0.500% 1.000%
--------------------------------------------------------------------------------
Level 5
BBB or Baa2 0.725% 1.250%
--------------------------------------------------------------------------------
Level 6
Lower than Level 5 0.800% 1.500%
--------------------------------------------------------------------------------
"Applicable Percentage" means, as of any date prior to the Term Loan
Conversion Date, a percentage per annum determined by reference to the Public
Debt Rating in effect on such date as set forth below:
----------------------------------------------------------
Public Debt Rating Applicable
S&P/Moody's Percentage
----------------------------------------------------------
Level 1
A+ or A1 or above 0.085%
----------------------------------------------------------
Level 2
A or A2 0.100%
----------------------------------------------------------
Level 3
A- or A3 0.110%
----------------------------------------------------------
Level 4
BBB+ or Baa1 0.125%
----------------------------------------------------------
Level 5
BBB or Baa2 0.150%
----------------------------------------------------------
Level 6
Lower than Level 5 0.200%
----------------------------------------------------------
"Applicable Utilization Fee" means, as of any date prior to the Term Loan
Conversion Date that the aggregate Advances exceed 50% of the aggregate
Commitments, a percentage per annum determined by reference to the Public Debt
Rating in effect on such date as set forth below:
----------------------------------------------------------
Public Debt Rating Applicable
S&P/Moody's Utilization Fee
----------------------------------------------------------
Level 1
A+ or A1 or above 0.125%
----------------------------------------------------------
Level 2
A or A2 0.125%
----------------------------------------------------------
Level 3
A- or A3 0.125%
----------------------------------------------------------
Level 4
BBB+ or Baa1 0.125%
----------------------------------------------------------
Level 5
BBB or Baa2 0.125%
----------------------------------------------------------
Level 6
Lower than Level 5 0.250%
----------------------------------------------------------
2
{PAGE}
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section 2.17(d).
"Assumption Agreement" has the meaning specified in Section 2.17(d)(ii).
"Bankruptcy Law" means Title 11, U.S. Code, or any similar foreign,
federal or state law for the relief of debtors.
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the highest
of:
(a) the rate of interest announced publicly by Citibank in New York,
New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no
nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1% per
annum, plus (ii) the rate obtained by dividing (A) the latest three-week
moving average of secondary market morning offering rates in the United
States for three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted to the basis
of a year of 360 days) being determined weekly on each Monday (or, if such
day is not a Business Day, on the next succeeding Business Day) for the
three-week period ending on the previous Friday by Citibank on the basis
of such rates reported by certificate of deposit dealers to and published
by the Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement
(including, but not limited to, any emergency, supplemental or other
marginal reserve requirement) for Citibank with respect to liabilities
consisting of or including (among other liabilities) three-month U.S.
dollar non-personal time deposits in the United States, plus (iii) the
average during such three-week period of the annual assessment rates
estimated by Citibank for determining the then current annual assessment
payable by Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring U.S. dollar deposits of Citibank in the United
States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as provided in
Section 2.06(a)(i).
"Borrowing" means a borrowing consisting of simultaneous Advances of the
same Type made by each of the Lenders pursuant to Section 2.01.
"Business Day" means a day of the year on which banks are not required or
authorized by law to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which dealings are carried on in the
London interbank market.
"Commitment" means as to any Lender (a) the amount set forth opposite such
Lender's name on the signature pages hereof, (b) if such Lender has become a
Lender hereunder pursuant to an Assumption Agreement, the amount set forth in
such Assumption Agreement or (c) if such Lender has entered into any Assignment
and Acceptance, the amount set forth for such Lender in the Register maintained
by the Agent pursuant to Section 9.07(d), as such amount may be reduced pursuant
to Section 2.04 or increased pursuant to Section 2.17.
3
{PAGE}
"Commitment Date" has the meaning specified in Section 2.17(b).
"Commitment Increase" has the meaning specified in Section 2.17(a).
"Confidential Information" means information that a Loan Party furnishes
to the Agent or any Lender in a writing designated as confidential, but does not
include any such information that is or becomes generally available to the
public or that is or becomes available to the Agent or such Lender from a source
other than a Loan Party.
"Consenting Lender" has the meaning specified in Section 2.18(b).
"Consolidated" refers to the consolidation of accounts in accordance with
GAAP.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section 2.07 or
2.08.
"Debt" of any Person means, without duplication, (a) all indebtedness of
such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than earn-out payment
obligations of such Person in connection with the purchase of property or
services to the extent they are still contingent), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments, (d)
all obligations of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (e) all obligations of such Person as lessee under leases that have
been or should be, in accordance with GAAP, recorded as capital leases, (f) all
obligations, contingent or otherwise, of such Person in respect of acceptances,
letters of credit or similar extensions of credit, (g) all obligations of such
Person in respect of Hedge Agreements, (h) all Debt of others referred to in
clauses (a) through (g) above or clause (i) below and other payment obligations
guaranteed directly or indirectly in any manner by such Person, or in effect
guaranteed directly or indirectly by such Person through an agreement (1) to pay
or purchase such Debt or to advance or supply funds for the payment or purchase
of such Debt, (2) to purchase, sell or lease (as lessee or lessor) property, or
to purchase or sell services, primarily for the purpose of enabling the debtor
to make payment of such Debt or to assure the holder of such Debt against loss,
(3) to supply funds to or in any other manner invest in the debtor (including
any agreement to pay for property or services irrespective of whether such
property is received or such services are rendered) or (4) otherwise to assure a
creditor against loss, and (i) all Debt referred to in clauses (a) through (h)
above secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including,
without limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Debt.
"Debt for Borrowed Money" of any Person means all items that, in
accordance with GAAP, would be classified as indebtedness on a Consolidated
balance sheet of such Person.
"Default" means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or
both.
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
"Domestic Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assumption Agreement or the Assignment and
Acceptance pursuant to which it became a Lender, or such other office of such
Lender as such Lender may from time to time specify to the Borrowers and the
Agent.
4
{PAGE}
"EBITDA" means, for any period, net income (or net loss) plus the sum of
(a) net interest expense, (b) income tax expense, (c) depreciation expense and
(d) amortization expense, in each case determined in accordance with GAAP for
such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender; and
(iii) any other Person approved by the Agent and, unless an Event of Default has
occurred and is continuing at the time any assignment is effected in accordance
with Section 9.07, the Guarantor, such approval not to be unreasonably withheld
or delayed; provided, however, that neither the Guarantor nor an Affiliate of
the Guarantor shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or potential
liability, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, Environmental Permit or hazardous
materials or arising from alleged injury or threat of injury to health, safety
or the environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory authority or
any third party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, judgment, decree or judicial or
agency interpretation, policy or guidance relating to pollution or protection of
the environment, health, safety or natural resources, including, without
limitation, those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of hazardous materials.
"Environmental Permit" means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA
is a member of the Guarantor's controlled group, or under common control with
the Guarantor, within the meaning of Section 414 of the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day
notice requirement with respect to such event has been waived by the PBGC, or
(ii) the requirements of subsection (1) of Section 4043(b) of ERISA (without
regard to subsection (2) of such Section) are met with respect to a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA
is reasonably expected to occur with respect to such Plan within the following
30 days; (b) the application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of intent
to terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred to in Section 4041(e) of
ERISA); (d) the cessation of operations at a facility of the Guarantor or any
ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by the Guarantor or any ERISA Affiliate from a Multiple Employer
Plan during a plan year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (f) the conditions for the imposition of a lien
under Section 302(f) of ERISA shall have been met with respect to any Plan; (g)
the adoption of an amendment to a Plan requiring the provision of security to
such Plan pursuant to Section 307 of ERISA; or (h) the institution by the PBGC
of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
5
{PAGE}
occurrence of any event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the appointment of a trustee to
administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Eurodollar Lending Office" opposite its name on
Schedule I hereto or in the Assumption Agreement or the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office is
specified, its Domestic Lending Office), or such other office of such Lender as
such Lender may from time to time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Borrowing, an interest rate per annum equal
to the rate per annum obtained by dividing (a) the rate per annum (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum) appearing on
Telerate Markets Page 3750 (or any successor page) as the London interbank
offered rate for deposits in U.S. dollars at approximately 11:00 A.M. (London
time) two Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period or, if for any reason such rate is not
available (but subject to the provisions of Section 2.07), the average (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum, if such average is
not such a multiple) of the rate per annum at which deposits in U.S. dollars are
offered by the principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period in an
amount substantially equal to such Reference Bank's Eurodollar Rate Advance
comprising part of such Borrowing to be outstanding during such Interest Period
and for a period equal to such Interest Period by (b) a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage for such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest as provided
in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the reserve
percentage applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate on
Eurodollar Rate Advances is determined) having a term equal to such Interest
Period.
"Events of Default" has the meaning specified in Section 6.01.
"Extension Date" has the meaning specified in Section 2.18(b).
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"GAAP" has the meaning specified in Section 1.03.
6
{PAGE}
"Guaranteed Obligations" has the meaning specified in Section 7.01.
"Guaranty" means the provisions of Article VII.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"Increase Date" has the meaning specified in Section 2.17(a).
"Increasing Lender" has the meaning specified in Section 2.17(b).
"Information Memorandum" means the information memorandum dated October 8,
2002 used by the Agent in connection with the syndication of the Commitments.
"Interest Period" means, for each Eurodollar Rate Advance comprising part
of the same Borrowing, the period commencing on the date of such Eurodollar Rate
Advance or the date of the Conversion of any Base Rate Advance into such
Eurodollar Rate Advance and ending on the last day of the period selected by the
applicable Borrower pursuant to the provisions below and, thereafter, with
respect to Eurodollar Rate Advances, each subsequent period commencing on the
last day of the immediately preceding Interest Period and ending on the last day
of the period selected by such Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six months,
and subject to clause (c) of this definition, nine months, as the applicable
Borrower may, upon notice received by the Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the first day of such
Interest Period, select; provided, however, that:
(a) the Borrowers may not select any Interest Period that ends after
the Termination Date or, if the Advances have been converted to a term
loan pursuant to Section 2.05 prior to such selection, that ends after the
Maturity Date;
(b) Interest Periods commencing on the same date for Eurodollar Rate
Advances comprising part of the same Borrowing shall be of the same
duration;
(c) in the case of any such Borrowing, the Borrowers shall not be
entitled to select an Interest Period having duration of nine months
unless, by 2:00 P.M. (New York City time) on the third Business Day prior
to the first day of such Interest Period, each Lender notifies the Agent
that such Lender will be providing funding for such Borrowing with such
Interest Period (the failure of any Lender to so respond by such time
being deemed for all purposes of this Agreement as an objection by such
Lender to the requested duration of such Interest Period); provided that,
if any or all of the Lenders object to the requested duration of such
Interest Period, the duration of the Interest Period for such Borrowing
shall be one, two, three or six months, as specified by the Borrower
requesting such Borrowing in the applicable Notice of Borrowing as the
desired alternative to an Interest Period of nine months;
(d) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day,
provided, however, that, if such extension would cause the last day of
such Interest Period to occur in the next following calendar month, the
last day of such Interest Period shall occur on the next preceding
Business Day; and
(e) whenever the first day of any Interest Period occurs on a day of
an initial calendar month for which there is no numerically corresponding
day in the calendar month that succeeds such initial calendar month by the
number of months in such Interest Period, such Interest Period shall end
on the last Business Day of such succeeding calendar month.
7
{PAGE}
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Lenders" means the Initial Lenders, each Assuming Lender that shall
become a party hereto pursuant to Section 2.17 or 2.18 and each Person that
shall become a party hereto pursuant to Section 9.07.
"Lien" means any lien, security interest or other charge or encumbrance of
any kind, or any other type of preferential arrangement intended to provide
security for the payment or performance of an obligation, including, without
limitation, the lien or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real property.
"Loan Party" means each Borrower and the Guarantor.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance or
properties of the Guarantor or the Guarantor and its Subsidiaries taken as a
whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance or
properties of the Guarantor or the Guarantor and its Subsidiaries taken as a
whole, (b) the rights and remedies of the Agent or any Lender under this
Agreement or any Note or (c) the ability of any Loan Party to perform its
obligations under this Agreement or any Note.
"Maturity Date" means the earlier of (a) the first anniversary of the
Termination Date and (b) the date of termination in whole of the aggregate
Commitments pursuant to Section 2.04 or 6.01.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Guarantor or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Guarantor or any ERISA Affiliate and at least one Person other than the
Guarantor and the ERISA Affiliates or (b) was so maintained and in respect of
which the Guarantor or any ERISA Affiliate could have liability under Section
4064 or 4069 of ERISA in the event such plan has been or were to be terminated.
"Non-Consenting Lender" has the meaning specified in Section 2.18(b).
"Note" means a promissory note of a Borrower payable to the order of any
Lender, delivered pursuant to a request made under Section 2.15 in substantially
the form of Exhibit A hereto, evidencing the aggregate indebtedness of such
Borrower to such Lender resulting from the Advances made by such Lender to such
Borrower.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor).
"Permitted Liens" means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced:
(a) Liens for taxes, assessments and governmental charges or levies to the
extent not required to be paid under Section 5.01(b) hereof; (b) Liens imposed
by law, such as materialmen's, mechanics', carriers', workmen's and repairmen's
Liens and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 30 days or
that are being contested in good faith and by appropriate proceedings that
8
{PAGE}
prevent the forfeiture or sale of the assets subject to such Lien; (c) pledges
or deposits to secure obligations under workers' compensation laws or similar
legislation or to secure public or statutory obligations or, in any such case,
to secure reimbursement obligations under letters of credit or bonds issued to
support such obligations; and (d) easements, rights of way and other
encumbrances on title to real property that do not render title to the property
encumbered thereby unmarketable or materially adversely affect the use of such
property for its present purposes.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Post-Petition Interest" has the meaning specified in Section 7.05.
"PTR Scheme" shall mean the Provisional Treaty Relief Scheme as described
in Inland Revenue Guidelines dated July 1999 and administered by the Inland
Revenue's Centre for Non-Residents.
"Public Debt Rating" means, as of any date, the rating that has been most
recently announced by either S&P or Moody's, as the case may be, for any class
of non-credit enhanced long-term senior unsecured debt issued by the Guarantor
or, if either such rating agency shall have issued more than one such rating,
the lowest such rating issued by such rating agency. For purposes of the
foregoing, (a) if only one of S&P and Moody's shall have in effect a Public Debt
Rating, the Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee shall be determined by reference to the available rating; (b) if
neither S&P nor Moody's shall have in effect a Public Debt Rating, the
Applicable Margin, the Applicable Percentage and the Applicable Utilization Fee
will be set in accordance with Level 6 under the definition of "Applicable
Margin", "Applicable Percentage" or "Applicable Utilization Fee", as the case
may be; (c) if the ratings established by S&P and Moody's shall fall within
different levels, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee shall be based upon the higher rating unless such
rating differs by two or more levels, in which case the applicable level will be
deemed to be one level above the lower of such levels; (d) if any rating
established by S&P or Moody's shall be changed, such change shall be effective
as of the date on which such change is first announced publicly by the rating
agency making such change; and (e) if S&P or Moody's shall change the basis on
which ratings are established, each reference to the Public Debt Rating
announced by S&P or Moody's, as the case may be, shall refer to the then
equivalent rating by S&P or Moody's, as the case may be.
"Reference Banks" means Citibank, ABN AMRO Bank N.V., JPMorgan Chase Bank
and Wachovia Bank, National Association.
"Register" has the meaning specified in Section 9.07(d).
"Required Lenders" means at any time Lenders owed at least a majority in
interest of the then aggregate unpaid principal amount of the Advances owing to
Lenders, or, if no such principal amount is then outstanding, Lenders having at
least a majority in interest of the Commitments.
"S&P" means Standard & Poor's, a division of The McGraw-Hill Companies,
Inc.
"Single Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of the Guarantor or
any ERISA Affiliate and no Person other than the Guarantor and the ERISA
Affiliates or (b) was so maintained and in respect of which the Guarantor or any
ERISA Affiliate could have liability under Section 4069 of ERISA in the event
such plan has been or were to be terminated.
"Subordinated Obligations" has the meaning specified in Section 7.05.
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"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding Voting Stock of such Person, (b) the
interest in the capital or profits of such limited liability company,
partnership or joint venture or (c) the beneficial interest in such trust or
estate is at the time directly or indirectly owned or controlled by such Person,
by such Person and one or more of its other Subsidiaries or by one or more of
such Person's other Subsidiaries.
"Term Loan Conversion Date" means the Termination Date on which all
Advances outstanding on such date are converted into a term loan pursuant to
Section 2.05.
"Term Loan Election" has the meaning specified in Section 2.05.
"Termination Date" means the earlier of (a) November 13, 2003, subject to
the extension thereof pursuant to Section 2.18 and (b) the date of termination
in whole of the Commitments pursuant to Section 2.04 or 6.01; provided, however,
that the Termination Date of any Lender that is a Non-Consenting Lender to any
requested extension pursuant to Section 2.18 shall be the Termination Date in
effect immediately prior to the applicable Extension Date for all purposes of
this Agreement.
"Voting Stock" means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right so to
vote has been suspended by the happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make Advances to the Borrowers from time to
time on any Business Day during the period from the Effective Date until the
Termination Date in an aggregate amount not to exceed at any time outstanding
such Lender's Commitment. Each Borrowing shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and shall
consist of Advances of the same Type made on the same day by the Lenders ratably
according to their respective Commitments. Within the limits of each Lender's
Commitment, the Borrowers may borrow under this Section 2.01, prepay pursuant to
Section 2.09 and reborrow under this Section 2.01.
SECTION 2.02. Making the Advances. (a) Each Borrowing shall be made on
notice, given not later than (x) 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances or (y) 11:00 A.M. (New York
City time) on the date of the proposed Borrowing in the case of a Borrowing
consisting of Base Rate Advances, by the applicable Borrower to the Agent, which
shall give to each Lender prompt notice thereof by telecopier or telex. Each
such notice of a Borrowing (a "Notice of Borrowing") shall be by telephone,
confirmed immediately in writing, or telecopier or telex in substantially the
form of Exhibit B hereto, specifying therein the requested (i) date of such
Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate
amount of such Borrowing, and (iv) in the case of a Borrowing consisting of
Eurodollar Rate Advances, initial Interest Period for each such Advance. Each
Lender shall, before 1:00 P.M. (New York City time) on the date of such
Borrowing make available for the account of its Applicable Lending Office to the
Agent at the Agent's Account, in same day funds, such
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Lender's ratable portion of such Borrowing. After the Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Agent will make such funds available to the Borrower at the Agent's
address referred to in Section 9.02.
(b) Anything in subsection (a) above to the contrary notwithstanding, (i)
the Borrowers may not select Eurodollar Rate Advances for any Borrowing if the
aggregate amount of such Borrowing is less than $10,000,000 or if the obligation
of the Lenders to make Eurodollar Rate Advances shall then be suspended pursuant
to Section 2.07 or 2.11 and (ii) the Eurodollar Rate Advances may not be
outstanding as part of more than six separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower requesting such Borrowing. In the case of any Borrowing that the
related Notice of Borrowing specifies is to be comprised of Eurodollar Rate
Advances, the applicable Borrower shall indemnify each Lender against any loss,
cost or expense incurred by such Lender as a result of any failure to fulfill on
or before the date specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III, including, without limitation,
any loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.
(d) Unless the Agent shall have received notice from a Lender prior to the
time of any Borrowing that such Lender will not make available to the Agent such
Lender's ratable portion of such Borrowing, the Agent may assume that such
Lender has made such portion available to the Agent on the date of such
Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the applicable Borrower
on such date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to the Agent, such Lender and
such Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to such Borrower until the date such amount is
repaid to the Agent, at (i) in the case of a Borrower, the interest rate
applicable at the time to Advances comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Advance as part of such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made by it as part
of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
SECTION 2.03. Fees. (a) Facility Fee. The Borrowers agree to pay to the
Agent for the account of each Lender a facility fee on the aggregate amount of
such Lender's Commitment from the Effective Date in the case of each Initial
Lender and from the effective date specified in the Assumption Agreement or in
the Assignment and Acceptance pursuant to which it became a Lender in the case
of each other Lender until the Termination Date at a rate per annum equal to the
Applicable Percentage in effect from time to time, payable in arrears quarterly
on the last day of each March, June, September and December, commencing December
31, 2002, and on the Termination Date.
(b) Agent's Fees. The Borrowers shall pay to the Agent for its own account
such fees as may from time to time be agreed between the Guarantor and the
Agent.
SECTION 2.04. Termination or Reduction of the Commitments. (a) Optional.
The Borrowers shall have the right, upon at least five Business Days' notice to
the Agent, to terminate in whole or permanently reduce ratably in part the
unused portions of the respective Commitments of the Lenders, provided that each
partial reduction shall be in the aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof.
(b) Mandatory. On the Termination Date, if the Borrowers have made the
Term Loan Election in accordance with Section 2.05 prior to such date, and from
time to time thereafter upon each prepayment of the Advances, the Commitments of
the Lenders shall be automatically and permanently reduced on a pro rata
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basis by an amount equal to the amount by which (i) the aggregate Commitments
immediately prior to such reduction exceeds (ii) the aggregate unpaid principal
amount of all Advances outstanding at such time.
SECTION 2.05. Repayment of Advances. The Borrowers shall, subject to the
next succeeding sentence, repay to the Agent for the ratable account of the
Lenders on the Termination Date the aggregate principal amount of the Advances
then outstanding. The Borrowers may, upon not less than 15 days' notice to the
Agent, elect (the "Term Loan Election") to convert all of the Advances
outstanding on the Termination Date in effect at such time into a term loan
which the Borrowers shall repay in full ratably to the Lenders on the Maturity
Date; provided that the Term Loan Election may not be exercised if a Default has
occurred and is continuing on the date of notice of the Term Loan Election or on
the date on which the Term Loan Election is to be effected. All Advances
converted into a term loan pursuant to this Section 2.05 shall continue to
constitute Advances except that the Borrowers may not reborrow pursuant to
Section 2.01 after all or any portion of such Advances have been prepaid
pursuant to Section 2.09.
SECTION 2.06. Interest on Advances. (a) Scheduled Interest. The Borrowers
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the sum of (x)
the Base Rate in effect from time to time plus (y) the Applicable Margin
in effect from time to time plus (z) the Applicable Utilization Fee, if
any, in effect from time to time, payable in arrears quarterly on the last
day of each March, June, September and December during such periods and on
the date such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance
is a Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the sum of (x) the Eurodollar
Rate for such Interest Period for such Advance plus (y) the Applicable
Margin in effect from time to time plus (z) the Applicable Utilization
Fee, if any, in effect from time to time, payable in arrears on the last
day of such Interest Period and, if such Interest Period has a duration of
more than three months, on each day that occurs during such Interest
Period every three months from the first day of such Interest Period and
on the date such Eurodollar Rate Advance shall be Converted or paid in
full.
(b) Default Interest. Upon the occurrence and during the continuance of an
Event of Default under Section 6.01(a), the Agent may, and upon the request of
the Required Lenders shall, require the Borrowers to pay interest ("Default
Interest") on (i) the unpaid principal amount of each Advance owing to each
Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii)
above, at a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid on such Advance pursuant to clause (a)(i) or (a)(ii)
above and (ii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable hereunder that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to clause (a)(i) above;
provided, however, that following acceleration of the Advances pursuant to
Section 6.01, Default Interest shall accrue and be payable hereunder whether or
not previously required by the Agent.
SECTION 2.07. Interest Rate Determination. (a) Each Reference Bank agrees
to furnish to the Agent timely information for the purpose of determining each
Eurodollar Rate. If any one or more of the Reference Banks shall not furnish
such timely information to the Agent for the purpose of determining any such
interest rate, the Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks. The Agent shall
give prompt notice to the applicable Borrower and the Lenders of the applicable
interest rate determined by the Agent for purposes of Section 2.06(a)(i) or
(ii), and the rate, if any, furnished by each Reference Bank for the purpose of
determining the interest rate under Section 2.06(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required Lenders
notify the Agent that the Eurodollar Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest
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Period, the Agent shall forthwith so notify the applicable Borrower and the
Lenders, whereupon (i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance, and (ii) the obligation of the Lenders to make, or to Convert Advances
into, Eurod