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U.S. $200,000,000
CREDIT AGREEMENT
Dated as of June 30, 1999
YOUNG & RUBICAM INC.
as Borrower
THE BANKS NAMED HEREIN
as Banks
CITIBANK, N.A.
as Administrative Agent and Documentation Agent
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
as Arranger and Book Manager
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TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS..........................................................................1
SECTION 1.02. COMPUTATION OF TIME PERIODS...................................................................16
SECTION 1.03. ACCOUNTING TERMS..............................................................................16
SECTION 1.04. TYPES OF ADVANCES.............................................................................16
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE ADVANCES..................................................................................17
SECTION 2.02. FEES..........................................................................................19
SECTION 2.03. CHANGES IN COMMITMENTS........................................................................20
SECTION 2.04. REPAYMENT OF ADVANCES.........................................................................22
SECTION 2.05. INTEREST......................................................................................22
SECTION 2.06. ADDITIONAL INTEREST ON LIBO RATE ADVANCES.....................................................23
SECTION 2.07. INTEREST RATE DETERMINATIONS; CHANGES IN PRICING LEVELS.......................................23
SECTION 2.08. CONVERSION AND CONTINUATION OF ADVANCES.......................................................24
SECTION 2.09. PREPAYMENTS OF ADVANCES.......................................................................25
SECTION 2.10. INCREASED COSTS...............................................................................26
SECTION 2.11. ILLEGALITY....................................................................................27
SECTION 2.12. PAYMENTS AND COMPUTATIONS.....................................................................27
SECTION 2.13. TAXES.........................................................................................29
SECTION 2.14. PRO RATA TREATMENT............................................................................31
SECTION 2.15. SHARING OF PAYMENTS, ETC......................................................................31
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. CONDITIONS PRECEDENT TO INITIAL BORROWING BY THE BORROWER.....................................33
SECTION 3.02. CONDITIONS PRECEDENT TO EACH BORROWING........................................................34
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES................................................................34
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. AFFIRMATIVE COVENANTS.........................................................................40
SECTION 5.02. NEGATIVE COVENANTS............................................................................44
SECTION 5.03 FINANCIAL COVENANTS...........................................................................49
Section Page
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT.............................................................................49
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. AUTHORIZATION AND ACTION......................................................................52
SECTION 7.02. ADMINISTRATIVE AGENT'S RELIANCE, ETC..........................................................52
SECTION 7.03. CITIBANK AND AFFILIATES.......................................................................53
SECTION 7.04. BANK CREDIT DECISION..........................................................................53
SECTION 7.05. INDEMNIFICATION...............................................................................53
SECTION 7.06. SUCCESSOR ADMINISTRATIVE AGENT................................................................54
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. AMENDMENTS, ETC...............................................................................54
SECTION 8.02. NOTICES, ETC..................................................................................55
SECTION 8.03. NO WAIVER; REMEDIES...........................................................................55
SECTION 8.04. COSTS, EXPENSES AND INDEMNIFICATION...........................................................55
SECTION 8.05. RIGHT OF SET-OFF..............................................................................57
SECTION 8.06. BINDING EFFECT................................................................................57
SECTION 8.07. ASSIGNMENTS AND PARTICIPATIONS................................................................58
SECTION 8.08. GOVERNING LAW.................................................................................60
SECTION 8.09. SEVERABILITY..................................................................................60
SECTION 8.10. EXECUTION IN COUNTERPARTS.....................................................................61
SECTION 8.11. SURVIVAL......................................................................................61
SECTION 8.12. WAIVER OF JURY TRIAL..........................................................................61
SECTION 8.13. CONFIDENTIALITY...............................................................................61
SCHEDULES
Schedule I........- ERISA Matters
Schedule II.......- Existing Liens
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Opinion of General Counsel to the Borrower
Exhibit D - Form of Opinion of Special New York Counsel to the Administrative Agent
Exhibit E - Form of Assignment and Acceptance
CREDIT AGREEMENT dated as of June 30, 1999, among YOUNG &
RUBICAM INC., a Delaware corporation (the "Borrower"), the banks (the "Banks")
listed on the signature pages hereof, and CITIBANK, N.A. ("Citibank") as
administrative agent (in such capacity, the "Administrative Agent") for the
Banks hereunder.
The Borrower has requested that the Banks make loans to it in
an aggregate principal amount up to but not exceeding $200,000,000 at any one
time outstanding in Dollars for general corporate purposes, including the making
of acquisitions, and the Banks are prepared to make such loans upon the terms
and conditions hereof. Accordingly, the parties hereto 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):
"Acquisition" means any transaction, or any series of related
transactions, consummated after the date of this Agreement, by which
the Borrower and/or any of its Subsidiaries (a) acquires any going
business or all or substantially all of the Property of any firm,
corporation or division thereof, whether through the purchase of
assets, merger or otherwise, (b) directly or indirectly acquires (in
one transaction or as the most recent transaction in a series of
transactions) control of at least a majority of Voting Shares of
another Person or (c) directly or indirectly acquires control of a 50%
or more ownership interest in any partnership, joint venture or other
entity, or of any general partnership (or equivalent) interest in any
such entity.
"Additional Commitment Bank" has the meaning specified in
Section 2.16(b).
"Administrative Agent's Account" means the account maintained
by the Administrative Agent at Citibank with its office at ▇▇▇ ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ # 021-00-0089, Account # ▇▇▇▇▇▇▇▇,
Attention NAIB Agency Medium Term Finance Re: Young & Rubicam Inc.
"Advance" means an advance by a Bank to the Borrower as part
of a Borrowing.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person. For purposes of this definition, the term
"control" (including the terms "controlling", "controlled by" and
"under common control with") of a Person means the possession, direct
or indirect, of the
Schedule I
power to vote 10% or more of the Voting Shares of such Person or to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of such Voting Shares, by
contract or otherwise.
"Applicable Facility Fee Rate" for any Pricing Level Period
means the rate set forth below opposite the reference to such Pricing
Level Period:
Applicable
Pricing Level Facility
Period Fee Rate (% p.a.)
------ -----------------
Pricing Level 1 Period 0.100%
Pricing Level 2 Period 0.125%
Pricing ▇▇▇▇▇ ▇ Period 0.175%
Each change in the Applicable Facility Fee Rate resulting from a
Pricing Level Change shall be effective on the effective date of such
Pricing Level Change. The Applicable Facility Fee Rate at the Closing
Date and until the first Pricing Level Change will be 0.100% per annum.
"Applicable Lending Office" means, with respect to each Bank,
for each Type of Advance, the Domestic Lending Office of such Bank (or
of an Affiliate of such Bank) in the case of a Base Rate Advance and
the LIBO Lending Office of such Bank (or of an Affiliate of such Bank)
in the case of a LIBO Rate Advance.
"Applicable Margin" in respect of any Advance for any Pricing
Level Period means the rate for the respective Type of Advance set
forth below opposite the reference to such Pricing Level Period:
Base Rate LIBO
Pricing Level Advances Rate Advances
Period (% p.a.) (% p.a.)
------ -------- --------
Pricing ▇▇▇▇▇ ▇ Period 0.0000% 0.525%
Pricing ▇▇▇▇▇ ▇ Period 0.0000% 0.575%
Pricing ▇▇▇▇▇ ▇ Period 0.0000% 0.700%
Each change in the Applicable Margin resulting from a Pricing Level
Change shall take effect on the effective date of such Pricing Level
Change. The Applicable Margin at the Closing Date and until the first
Pricing Level Change will be (a) 0.0000% per annum for Base Rate
Advances and (b) 0.525% per annum for LIBO Rate Advances.
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"Applicable Utilization Fee Rate" for any Pricing Level Period
means the rate set forth below opposite the reference to such Pricing
Level Period:
Applicable
Pricing Level Utilization
Period Fee Rate (% p.a.)
Pricing Level 1 Period 0.075%
Pricing Level 2 Period 0.100%
Pricing ▇▇▇▇▇ ▇ Period 0.125%
Each change in the Applicable Utilization Fee Rate resulting
from a Pricing Level Change shall be effective on the effective date of
such Pricing Level Change. The Applicable Utilization Fee Rate at the
Closing Date and until the first Pricing Level Change will be 0.075%
per annum.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Bank and an assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit E.
"Banks" means the Banks listed on the signature pages hereof,
and each Person that shall become a party hereto pursuant to Section
2.03(a) or Section 8.07(a), (b) and (c) and, for purposes of Sections
2.01, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.10, 2.11, 2.12, 2.13, 2.14,
2.15 and Article IX and any related definitions used in any of such
Sections or Article IX; provided that, anything in this Agreement to
the contrary notwithstanding, no such Affiliate shall have a Commitment
hereunder.
"Base Rate" means, for any period, 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) 0.50% per annum above the Federal Funds Rate; and
(c) the sum (adjusted to the nearest 1/16 of one percent
or, if there is no nearest 1/16 of one percent, to
the next higher 1/16 of one percent) of (i) 0.50% per
annum plus (ii) the rate obtained by dividing (x) 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 center banks, such three-week moving
average (adjusted to the basis of a year of 365 days)
being determined weekly on each Monday (or, if such
day is not a Business Day, on the next succeeding
Business
Credit Agreement
3
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 (y) a percentage equal to 100% minus the average
of the daily percentages specified during such
three-week period by the Board of Governors of the
Federal Reserve System (or any successor) for
determining the maximum reserve requirement
(including, but not limited to, any emergency,
supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting
of or including (among other liabilities) three-month
Dollar non-personal time deposits in the United
States plus (iii) the average during such three-week
period of the annual assessment ---- rates estimated
by Citibank for determining the then current annual
assessment rate payable by Citibank to the Federal
Deposit Insurance Corporation (or any successor) for
insuring Dollar deposits of Citibank in the United
States.
Each change in any interest rate provided for herein based upon the
Base Rate resulting from a change in the Base Rate shall take effect at
the time of such change in the Base Rate.
"Base Rate Advance" means, at any time, an Advance which bears
interest at the Base Rate.
"Borrowing" means (a) a borrowing consisting of simultaneous
Advances of the same Type having the same Interest Period and (b) other
than for purposes of Section 3.02, (i) the simultaneous Conversion of
Advances of one Type to Advances of the other Type (having, in the case
of Conversions into LIBO Rate Advances, the same Interest Period) and
(ii) the simultaneous Continuation of Advances of one Type as Advances
of the same Type and having the same Interest Period.
"Business Day" means a day of the year (a) on which banks are
not required or authorized to close in New York, New York and (b) if
the applicable Business Day relates to any LIBO Rate Advance, on which
dealings in Dollar deposits are carried on in the London interbank
market.
"Capital Lease Obligations" means, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease
of (or other agreement conveying the right to use) real and/or personal
Property which obligations are required to be classified and accounted
for as a capital lease on a balance sheet of such Person under GAAP
and, for purposes of this Agreement, the amount of such obligations
shall be the capitalized amount thereof, determined in accordance with
GAAP.
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"Cash Equivalents" means (a) securities with maturities of one
year or less from the date of acquisition thereof issued or fully
guaranteed or insured by the United States Government or any agency
thereof, (b) certificates of deposit and Eurodollar time deposits with
maturities of one year or less from the date of acquisition thereof and
overnight bank deposits of any Bank or of any commercial bank having
capital and surplus in excess of $500,000,000, (c) repurchase
obligations of any Bank or of any commercial bank satisfying the
requirements of clause (b) of this definition, having a term of not
more than 30 days with respect to securities issued or fully guaranteed
or insured by the United States Government, (d) commercial paper of a
domestic issuer rated at least A-2 by Standard and Poor's Rating Group
("S&P") or P-2 by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), (e)
securities with maturities of one year or less from the date of
acquisition thereof issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by S&P or
A by Moody's, (f) securities with maturities of one year or less from
the date of acquisition thereof backed by standby letters of credit
issued by any Bank or any commercial bank satisfying the requirements
of clause (b) of this definition or (g) shares of money market mutual
or similar funds which invest exclusively in assets satisfying the
requirements of clauses (a) through (f) of this definition.
"Change in Control" means:
(i) any "person" or "group" (as such terms are used in
Sections 13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934,
as amended), other than (a) the HFCP Investors and their "affiliates"
(as such term is defined in Rule 12b-2 under the Securities Exchange
Act of 1934, as amended) or (b) the Management Voting Trust or the
Management Investors become the "beneficial owner" (as defined in Rule
13d-3 of the Securities Exchange Act of 1934, as amended), directly or
indirectly, of Voting Shares of the Borrower (or other securities
convertible into such Voting Shares) representing not less than 30% of
the combined voting power of all Voting Shares of the Borrower; or
(ii) individuals who as of the date hereof are directors of
the Borrower (together with any new director whose election by the
board of directors or whose nomination for election by the stockholders
of the Borrower was approved by a vote of at least a majority of the
directors then in office who either were directors as of the date
hereof or whose election or nomination for election was previously so
approved) shall cease for any reason (other than solely as a result of
(a) death or disability or (b) voluntary retirement of any individual
in the ordinary course and not for reasons related to an actual or
proposed change in control of the Borrower) to constitute a majority of
the board of directors of the Borrower; or
Credit Agreement
5
(iii) any Person or two or more Persons acting in concert
(excluding (a) the HFCP Investors and their "affiliates" (as such term
is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as
amended)) or (b) the Management Voting Trust or the Management
Investors shall have acquired the power to exercise, directly or
indirectly, effective control for any purpose over Voting Shares of the
Borrower (or other securities convertible into such securities)
representing not less than 30% of the combined voting power of all
Voting Shares of the Borrower.
"Closing Date" means the date on which the Administrative
Agent notifies the Borrower that the conditions precedent set forth in
Section 3.01 shall have been satisfied or waived.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" has the meaning specified in Section 2.01(a)(i).
"Commitment Termination Date" means June 29, 2000 (as the same
may be extended from time to time as provided in Section 2.16 hereof),
provided, that if such date is not a Business Day, then the Commitment
Termination Date shall be the immediately preceding Business Day.
"Commonly Controlled Entity" means an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Consent Date" has the meaning specified in Section 2.16(a).
"Consolidated" means, when used in connection with any term
(which is not otherwise defined herein), such term as it applies to the
Borrower and its Subsidiaries on a consolidated basis in accordance
with GAAP, after eliminating all intercompany items.
"Consolidated Debt" means, at any time, the aggregate
outstanding principal amount of all Debt of the Borrower and its
Subsidiaries, determined on a consolidated basis in accordance with
GAAP.
"Consolidated EBITDA" means, for any period, the amount equal
to Consolidated Net Income for such period excluding non-operating
gains or losses, plus, in each case to the extent deducted in
determining Consolidated Net Income for such period, the sum for the
Borrower and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP, of the following: (a) Consolidated Interest
Expense for such period, (b) Consolidated provision for income taxes
for such period, (c) Consolidated depreciation and amortization expense
for such period, (d) any amounts in respect of the minority interest of
any other Person in the Borrower and its Subsidiaries for such period,
(e) the amount of all dividends received during such period from
Persons which are partially-
Credit Agreement
6
owned by the Borrower, but which are not Wholly-Owned Subsidiaries of
the Borrower and which are not Consolidated for such period, (f)
expenses incurred or reserves taken during such period associated with
(i) the sale of the New York Real Property, including the relocation or
consolidation of individuals and offices located in New York City
(whether or not occupying the New York Real Property) in connection
with, or in anticipation of, such sale, or (ii) the relocation or
consolidation of individuals and offices located in New York City,
currently occupying more than 300,000 square feet, including in each
case all expenses of renovating office space, and (g) equity losses
from any other Person which is partially-owned by the Borrower but
which is not a Wholly-Owned Subsidiary of the Borrower and which is not
Consolidated for such period, minus, in each case to the extent added
in determining such Consolidated Net Income for such period, (x) any
amounts in respect of the minority interest of any other Person in the
Borrower and its Subsidiaries for such period, (y) the amount of all
dividends paid during such period by Persons which are not Wholly-Owned
Subsidiaries of the Borrower, but which the Borrower reports on a
consolidated basis in accordance with GAAP, and (z) equity gains from
any other Person which is partially-owned by the Borrower but which is
not a Wholly-Owned Subsidiary of the Borrower and which is not
Consolidated for such period.
"Consolidated Interest Expense" means, for any period, for the
Borrower and its Consolidated Subsidiaries, the sum, determined on a
consolidated basis in accordance with GAAP and without duplication, of
the aggregate amount of interest accruing during such period by the
Borrower and its Consolidated Subsidiaries, including the interest
portion of payments under Capital Lease Obligations and any capitalized
interest and amortization of debt discount and expense, but excluding
interest paid in kind and amortization or write-off of debt issuance
costs in connection with the termination of the Existing Credit
Agreement.
"Consolidated Net Income" means, for any period, the net
income of the Borrower and its Consolidated Subsidiaries determined on
a consolidated basis in accordance with GAAP for such period.
"Consolidated Subsidiary" means, at any date, any Subsidiary
of the Borrower the accounts of which are consolidated with those of
the Borrower in its consolidated financial statements prepared in
accordance with GAAP.
"Continue", "Continuation" and "Continued" each refers to a
continuation of Advances of one Type as Advances of the same Type
pursuant to Section 2.08(b).
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
instrument or other undertaking to which such Person is a party or by
which it or any of its Property is bound.
Credit Agreement
7
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.08(a), (c) or (d).
"Debt" of any Person means, without duplication, (a)
indebtedness of such Person for borrowed money, (b) obligations of such
Person evidenced by bonds, debentures, notes or other similar
instruments, (c) obligations of such Person to pay the deferred
purchase price of Property or services, (d) Capital Lease Obligations
of such Person, (e) Debt of others Guaranteed by such Person, (f) Debt
of others secured by a Lien on the Property of such Person, (g) all
obligations of such Person to redeem, retire, defease or otherwise make
any payment in respect of shares of capital stock of such Person (other
than any subordinated payment obligations existing on the Closing Date
in respect of the repurchase, retirement or redemption of capital stock
of the Borrower from former Management Investors), and (h) all
obligations, contingent or otherwise, of such Person in respect of
letters of credit or acceptances (excluding, however, trade accounts
payable arising in the ordinary course of business and deferred rent
and deferred employee compensation incurred in the ordinary course of
business, and, in each case, not overdue).
"Debt to EBITDA Ratio" means, on any date, the ratio of (i)
Consolidated Debt on such date to (ii) Consolidated EBITDA for the
period of four consecutive fiscal quarters of the Borrower ending on or
most recently ended prior to such date.
"Default" means an Event of Default or an event that, with
notice or lapse of time or both, would become an Event of Default.
"Divestiture" shall mean any transaction, or any series of
related transactions, consummated after the date of this Agreement, by
which the Borrower and/or any of its Subsidiaries sells, transfers or
otherwise disposes of (a) any going business or all or substantially
all of the Property of any of its Subsidiaries, whether through the
purchase of assets, merger or otherwise or (b) at least a majority of
Voting Shares of any of its Subsidiaries.
"Dollars" and "$" means lawful money of the United States of America.
"Domestic Lending Office" means, with respect to any Bank, the
office of such Bank (or of an Affiliate of such Bank) specified as its
"Domestic Lending Office" below its signature hereto or in the
Assignment and Acceptance pursuant to which it became a Bank, or such
other office of such Bank (or of an Affiliate of such Bank) as such
Bank may from time to time specify to the Borrower and the
Administrative Agent.
"Domestic Operating Subsidiary" means any Operating Subsidiary
organized under the laws of any jurisdiction within the United States.
Credit Agreement
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"Environmental Laws" means any and all present and future
United States Federal, state, local and foreign laws, rules or
regulations, and any orders or decrees, in each case as now or
hereafter in effect, relating to the regulation or protection of human
health, safety or the environment or to emissions, discharges, releases
or threatened releases of pollutants, contaminants, chemicals or toxic
or hazardous substances or wastes into the indoor or outdoor
environment, including, without limitation, ambient air, soil, surface
water, ground water, wetlands, land or subsurface strata, or otherwise
relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"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.
"Existing Termination Date" has the meaning specified in
Section 2.16(a).
"Extending Bank" has the meaning specified in Section 2.16(a).
"Events of Default" has the meaning specified in Section 6.01.
"Facility Fee" has the meaning specified in Section 2.02(a).
"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 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.
"Foreign Operating Subsidiary" means any Operating Subsidiary
of the Borrower organized under the laws of any jurisdiction outside
the United States of America.
"GAAP" has the meaning specified in Section 1.03.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
Credit Agreement
9
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt
of another Person, including without limitation any obligation of such
Person (a) to purchase or pay (or supply or advance funds for the
purchase or payment of) such Debt (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise), or (b) entered into for
the purpose of assuring in any other manner the holder of such Debt of
the payment thereof in whole or in part; provided, that the term
"Guarantee" shall not include any endorsement of an instrument for
deposit or collection in the ordinary course of business.
The term "Guarantee" used as verb has a corresponding meaning.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price
protection agreement or other interest or currency exchange rate or
commodity price hedging arrangement.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person in respect of Hedging Agreements. The
"principal amount" of the obligations of any Person in respect of any
Hedging Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting arrangements) that such Person would be
required to pay if such Hedging Agreement were terminated at such time.
"HFCP Investors" means, collectively, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Capital Partners III, L.P., a California limited partnership, H&F
Orchard Partners III, L.P. , a California limited partnership, and H&F
International Partners III, L.P. , a California limited partnership.
"Hostile Acquisition" means an Acquisition that has not been
approved by the board of directors of the target company prior to the
commencement of a tender offer or proxy contest in respect thereof.
"Inactive Subsidiary" means any Subsidiary of the Borrower
which (and only for so long as such Subsidiary) (a) is not a Borrower,
(b) is not then actually engaged in any business, (c) does not have
liabilities or obligations, and is not a party to any litigation or
other proceeding involving amounts, in excess of $1,000,000 in the
aggregate, (d) does not own Property with an aggregate book value in
excess of $1,000,000, (e) does not own any capital stock of any Person
(other than another Inactive Subsidiary) and (f) does not incur any
liabilities or obligations other than in connection with its continued
inactive existence or the liquidation or dissolution thereof.
"Insolvent" means, with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA. "Insolvency" has a correlative meaning.
Credit Agreement
10
"Interest Coverage Ratio" means, on any date, the ratio of (a)
Consolidated EBITDA for the period of four consecutive fiscal quarters
most recently ended on or prior to such date to (b) Consolidated
Interest Expense for such period.
"Interest Period" means, with respect to any LIBO Rate
Advance, the period beginning on the date such LIBO Rate Advance is
made, or Converted from a Base Rate Advance or Continued as a LIBO Rate
Advance, and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of each
Interest Period in respect of any LIBO Rate Advance shall be 1, 2, 3 or
6 months, as the Borrower may, upon notice received by the
Administrative Agent not later than 12:00 noon (New York City time) on
the third Business Day prior to the first day of such Interest Period,
select; provided, however, that:
(a) the Borrower may not select any Interest Period
in respect of any LIBO Rate Advance that ends after the
Commitment Termination Date;
(b) each Interest Period that begins on the last
Business Day of a calendar month (or on any day for which
there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day
of the appropriate subsequent calendar month; and
(c) 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, 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.
"Investment" has the meaning specified in Section 5.02(d).
"Joint Venture" means any corporation, partnership,
association, business trust or other entity or organization which is
not a Subsidiary of the Borrower and in which the Borrower or a
Subsidiary of the Borrower has a significant ownership interest.
"LIBO Lending Office" means, with respect to any Bank, the
office of such Bank (or of an Affiliate of such Bank) specified as its
"LIBO Lending Office" below its signature hereto or in the Assignment
and Acceptance pursuant to which it became a Bank (or, if no such
office is specified, its Domestic Lending Office), or such other office
of such Bank (or of an Affiliate of such Bank) as such Bank may from
time to time specify to the Borrower and the Administrative Agent.
"LIBO Rate" means, with respect to each day during the
relevant Interest Period, the rate per annum equal to 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 rates per annum at
Credit Agreement
11
which deposits in 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 for a period comparable to such
Interest Period and in an amount approximately equal to such Reference
Banks' collective pro rata share of the requested Advance. The LIBO
Rate for any Interest Period for each LIBO Rate Advance comprising part
of each Borrowing shall be determined by the Administrative Agent on
the basis of applicable rates furnished to and received by the
Administrative Agent from the Reference Banks two Business Days before
the first day of such Interest Period, subject, however, to the
provisions of Section 2.07.
"LIBO Rate Advance" means an Advance which bears interest as
provided in Section 2.05(a)(ii) or 2.05(b)(i)(y).
"LIBO Rate Reserve Percentage" of any Bank for any Interest
Period for any LIBO Rate Advance means the effective rate (expressed as
a percentage) at which reserve requirements (including, without
limitation, emergency, supplemental and other marginal reserve
requirements) are imposed on such Bank during such Interest Period (or
if more than one such percentage shall be so applicable, the daily
average of such percentages for those days in such Interest Period
during which any such percentage shall be so applicable) under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities having a
term equal to such Interest Period.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind on or with respect to Property, including,
without limitation, the retained security title of a conditional
vendor, any easement, right of way or other encumbrance on title to
real Property and any sale of accounts or general intangibles for money
due or to become due.
"Majority Banks" means at any time Banks holding more than 50%
of the Commitments or, if the Commitments have expired or been
terminated, Banks holding more than 50% of the then aggregate unpaid
principal amount of the Advances held by Banks (for which purpose
Advances held by any Affiliate of a Bank shall be deemed to be held by
such Bank).
"Management Investor" means any holder of Voting Shares or of
a right to acquire Voting Shares who is a current or former employee of
the Borrower.
"Management Voting Trust" means the voting trust established
pursuant to the Management Voting Trust Agreement, dated as of December
12, 1996.
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12
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise) or prospects of
the Borrower and its Subsidiaries, taken as a whole, or (b) the
legality, validity or enforceability of this Agreement or any Note, or
(c) the ability of the Borrower to perform its obligations under this
Agreement or any Note.
"Material Foreign Operating Subsidiary" means any Foreign
Operating Subsidiary of the Borrower (a) which has liabilities or
obligations, or is a party to any litigation or other proceeding
involving amounts, in excess of $5,000,000 in the aggregate, provided
that no Foreign Operating Subsidiary shall be a Material Foreign
Operating Subsidiary under this clause (a) unless the Borrower or any
Domestic Operating Subsidiary or other Material Foreign Operating
Subsidiary is or may be liable for such liabilities, obligations,
litigations or proceedings, or (b) which owns assets (net of current
liabilities (other than those owed to the Borrower or any of its
Subsidiaries) immediately prior to the occurrence of the relevant event
described in Section 6.01(g) with respect to such Foreign Operating
Subsidiary) with an aggregate book value in excess of $5,000,000.
"Material Lease" means any lease, sublease, license or other
occupancy agreement (a) which involves an obligation with respect to
50,000 or more square feet in area of real Property and (b) to which
the Borrower or any of its Subsidiaries is a party or pursuant to which
the Borrower or any such Subsidiary uses or occupies real Property.
"Materials of Environmental Concern" means any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Multiemployer Plan" means a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Net Amount" means, with respect to any Investment, the cost
to the Borrower and its Subsidiaries of such Investment (determined in
accordance with GAAP, but without regard to any increase or decrease in
the value of such Investment, whether resulting from profits and losses
or from changes in currency exchange rates or otherwise, or the
existence of any undistributed profits or losses with respect thereto),
less any net return of capital realized upon the sale, repayment or
other liquidation of such Investment (determined in accordance with
GAAP, but without regard to any amounts realized as earnings on such
Investment).
"New York Real Property" means the real Property owned by the
Borrower located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇.
"Non-Extending Bank" has the meaning specified in 2.16(a).
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13
"Note" means a promissory note of the Borrower payable to the
order of any Bank, in substantially the form of Exhibit A hereto,
evidencing the aggregate indebtedness of the Borrower to such Bank
resulting from the Advances made by such Bank.
"Notice of Borrowing" has the meaning specified in Section
2.01(d)(i).
"Operating Subsidiary" means any Subsidiary other than an
Inactive Subsidiary.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a Government Authority.
"Plan" means, at any time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pricing Level Change" means a change in the Debt to EBITDA
Ratio that results in the change from one Pricing Level Period to
another, each Pricing Level Change to be effective on the date of
delivery by the Borrower pursuant to Section 5.01(a)(i) and (ii) of the
financial statements that demonstrate such change; provided, that if
the Borrower shall fail to deliver when due such financial statements,
the Pricing Level 3 Period shall be deemed to apply from the date on
which such financial statements were due until they are delivered in
accordance with said Section 5.01(a)(i) or (ii).
"Pricing Level Period" means a Pricing Level 1 Period, a
Pricing Level 2 Period or a Pricing ▇▇▇▇▇ ▇ Period.
"Pricing Level 1 Period" means a period during which the Debt
to EBITDA Ratio is less than 1.0 to 1.0.
"Pricing Level 2 Period" means a period that is not a Pricing
Level 1 Period during which the Debt to EBITDA Ratio is less than 2.5
to 1.0.
"Pricing Level 3 Period" means a period during which the Debt
to EBITDA Ratio is greater than or equal to 2.5 to 1.0.
"Property" means, with respect to any Person, any property,
assets or revenues of such Person or any interest of such Person
therein.
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14
"Quarterly Date" means the last Business Day of each March,
June, September and December.
"Reference Banks" means the principal London office of each of
Citibank, Bank of America National Trust and Savings Association and
The Bank of Nova Scotia.
"Register" has the meaning specified in Section 8.07(d).
"Related Equity Securities" means, all options, warrants or
other rights to acquire, or obligations to issue, shares of capital
stock of, equity interests in, or partnership interests in, the
Borrower or any of its Subsidiaries, or similar securities or
contractual obligations the value of which is derived from the value of
an equity interest in the Borrower or any of its Subsidiaries, or
securities convertible into or exchangeable for capital stock of,
equity interests in, partnership interests in, or similar securities or
contractual obligations of, the Borrower or any of its Subsidiaries.
"Reportable Event" means any of the events set forth in
Section 4043(b) of ERISA, other than those events as to which the
thirty-day notice period is waived under subsections .13, .14, .16,
.18, .19 or .20 of PBGC Reg. ss. 2615.
"Reorganization" means, with respect to any Multiemployer
Plan, the condition that such plan is in reorganization within the
meaning of Section 4241 of ERISA.
"Requirement of Law" means, as to any Person, the certificate
of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its Property or to which such Person or any of its Property is
subject.
"Responsible Officer" means, as to any Person, the chief
executive officer, the president, any member of the management
committee of such Person or any other officer of such Person designated
as such in writing by any of the foregoing officers of such Person or,
with respect to financial matters, the chief financial officer, the
chief accounting officer or the treasurer of such Person.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"SSB" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, limited liability company or other entity of
which at least a majority of the Voting Shares is at the time directly
or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more
Subsidiaries of such
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15
Person. Unless the context otherwise indicates, a reference to a
Subsidiary, shall mean a Subsidiary of the Borrower.
"Termination Date" means the earlier of the Commitment
Termination Date and the date of termination in whole of the
Commitments pursuant to Section 2.03(b) or 6.01.
"Utilization Fee" has the meaning specified in Section
2.02(e).
"Voting Shares" means, at any time, as to any Person, the
outstanding securities of such 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.
"Wholly-Owned Subsidiary" means, with respect to any Person,
any Subsidiary of such Person 100% of the Voting Shares (except
qualifying shares held by directors or others in order to comply with
local law) of which are owned by such Person and/or one or more other
Wholly-Owned Subsidiaries of such Person.
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 means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted United States accounting principles ("GAAP"), applied on a basis
consistent (except for changes concurred in by the Borrower's independent public
accountants) with the most recent audited consolidated financial statements of
the Borrower and its Consolidated Subsidiaries delivered to the Banks; provided,
that if after the date of this Agreement there are any changes to GAAP, the
Borrower or the Required Banks may request an amendment to any provision of this
Agreement to take account of such changes, and, until such provision is so
amended or such request withdrawn, all determinations of such provision shall be
made on the basis of GAAP applied on a basis consistent with the audited
financial statements of the Borrower and its Consolidated Subsidiaries most
recently delivered prior to the time such changes to GAAP became effective.
SECTION 1.04. Types of Advances. Advances are distinguished by
"Type". The "Type" of an Advance refers to whether it is at the time a Base Rate
Advance or a LIBO Rate Advance.
Credit Agreement
16
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances.
(a)(i) Each Bank severally agrees, on the terms and conditions
hereinafter set forth, to make Advances to the Borrower in Dollars from
time to time on any Business Day during the period from the date hereof
until the Termination Date in an aggregate amount not to exceed at any
time outstanding the amount set opposite such Bank's name on the
signature pages hereof or, if such Bank has entered into any Assignment
and Acceptance, set forth for such Bank in the Register, as such amount
may be increased or reduced pursuant to Section 2.03 (such Bank's
"Commitment").
(ii) If after giving effect to any LIBO Rate Advances under
this Section 2.01(a) more than twelve separate Interest Periods in
respect of LIBO Rate Advances would be outstanding at the same time,
then such Advances shall not be required to be made as LIBO Rate
Advances.
(b) Each Borrowing (i) shall (except as otherwise provided in
Sections 2.08(c) and (d)) be in an aggregate amount not less than $10,000,000 or
an integral multiple of $1,000,000 in excess thereof and (ii) shall consist of
Advances of the same Type (and, if such Advances are LIBO Rate Advances, having
the same Interest Period), and made, Converted or Continued on the same day by
the Banks ratably according to their respective Commitments. Subject to the
terms and conditions of this Agreement, the Borrower may from time to time
borrow under this Section 2.01, prepay pursuant to Section 2.09(b) and reborrow
the amount of the Commitments; provided, that no such reborrowing shall be
permitted hereunder at any time if, after giving effect thereto, the aggregate
outstanding principal amount of Advances would exceed the aggregate amount of
the Commitments at such time.
(c) The Advances of each Bank made to the Borrower under this
Section 2.01 shall be evidenced by a single promissory note of the Borrower in
the amount of such Bank's Commitment in substantially the form of Exhibit A.
(d) (i) The Borrower shall give the Administrative Agent
notice of each Borrowing not later than (x) 12:00 noon (New York City
time) on the third Business Day prior to the date of such Borrowing in
the case of a Borrowing consisting of LIBO Rate Advances, or than (y)
11:00 A.M. (New York City time) on the Business Day of the proposed
Borrowing in the case of a Borrowing consisting of Base Rate Advances,
and the Administrative Agent shall give to each Bank prompt notice
thereof by telecopier, telex or cable. Each such notice of a Borrowing
(a "Notice of Borrowing") shall be by telecopier, telex or cable, in
substantially the form of Exhibit B, specifying therein (i) the
requested date of such Borrowing, (ii) the requested Type of Advances
comprising such
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17
Borrowing, (iii) the requested aggregate amount of such Borrowing, and
(iv) in the case of a Borrowing consisting of LIBO Rate Advances, the
requested initial Interest Period for each such Advance.
(ii) Each Bank 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 Administrative Agent at the
Administrative Agent's Account, in same day funds, such Bank's ratable
portion of such Borrowing. After the Administrative Agent's receipt of
such funds and upon fulfillment of the applicable conditions set forth
in Article III, the Administrative Agent will make such funds available
to the applicable Borrower at such account as the Borrower and the
Administrative Agent may agree.
(e) Each Notice of Borrowing shall be irrevocable and binding
on the Borrower. In the case of any Borrowing which the related Notice of
Borrowing specifies is to be comprised of LIBO Rate Advances, the Borrower shall
indemnify each Bank against any loss, cost or expense incurred by such Bank as a
result of any failure to fulfill, on or before the date specified in such Notice
of Borrowing, the applicable conditions set forth in Article III, including,
without limitation, any loss (excluding loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Bank to fund the Advance to be made by such Bank as
part of such Borrowing. The Borrower shall not be liable under this clause for
the payment of any amounts incurred or accrued more than 180 days prior to the
date on which notice of the event or circumstance giving rise to the obligation
to make such payment is given to the Borrower hereunder, except to the extent
such amounts were incurred or accrued prior to such date due solely to the
retroactive nature of the relevant requirement. The Borrower shall pay amounts
owing to any Bank pursuant to this Section 2.01(e) within 30 days after receipt
from such Bank of a certificate setting forth in reasonable detail the
calculation of the amount such Bank is entitled to claim under this Section
2.01(e) (which certificate shall be conclusive and binding on the Borrower,
absent manifest error). If the Borrower objects in good faith to any payment
demanded under this clause on or before the date such payment is due, then the
Borrower and the Bank demanding such payment shall enter into discussions to
review the amount due, and the Borrower's obligation to pay such amount to such
Bank shall be deferred for 45 days after the original demand for payment, and if
the Borrower and such Bank do not reach agreement during such 45-day period on
the amount due, the Borrower shall pay to such Bank at the end of such 45-day
period the amount certified by such Bank to be due.
(f) Unless the Administrative Agent shall have received notice
from a Bank prior to the date of any Borrowing that such Bank will not make
available to the Administrative Agent such Bank's ratable portion of such
Borrowing, the Administrative Agent may assume that such Bank has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with Section 2.01(d) and the Administrative 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 Bank shall not have so made
such ratable portion available to the Administrative Agent, such Bank and the
Borrower severally agree to repay to the
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18
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Administrative Agent,
at (i) in the case of the Borrower, the interest rate applicable at the time to
the Advances and (ii) in the case of such Bank, the Federal Funds Rate. If such
Bank shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Bank's Advance as part of such Borrowing
for purposes of this Agreement (and such Advance shall be deemed to have been
made by such Bank on the date on which such amount is so repaid to the
Administrative Agent).
(g) The failure of any Bank to make the Advance to be made by
it as part of any Borrowing shall not relieve any other Bank of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no Bank
shall be responsible for the failure of any other Bank to make the Advance to be
made by such other Bank on the date of any Borrowing.
(h) The Advances of each Type made by each Bank shall be made
and maintained at such Bank's Applicable Lending Office for Advances of such
Type.
SECTION 2.02. Fees.
(a) Facility Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Bank a facility fee (the "Facility
Fee") on the daily average amount (both used and unused) of such Bank's
Commitment from the date (in the case of each Bank that is a signatory hereto)
on which the Borrower signs this Agreement and from the effective date specified
in the Assignment and Acceptance (in the case of each Bank that becomes a party
hereto pursuant to Section 2.03(a), 2.16(b) or 8.07) pursuant to which it became
a Bank, until the Termination Date, at a rate per annum equal to the Applicable
Facility Fee Rate as in effect from time to time. Any accrued Facility Fees
shall be paid on each Quarterly Date and on the Termination Date.
(b) Administrative Agent's Fee. The Borrower agrees to pay to
the Administrative Agent, for the Administrative Agent's own account, an annual
administrative agency fee at the times and in the amounts heretofore agreed
between the Borrower and the Administrative Agent.
(c) Arrangement Fee. The Borrower agrees to pay to SSB for
SSB's own account, an arrangement fee on the Closing Date in the amount
heretofore agreed between the Borrower and SSB.
(d) Upfront Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Bank an upfront fee on the Closing
Date in the amount heretofore agreed between the Borrower, the Administrative
Agent and SSB.
(e) Utilization Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Bank a utilization fee (the
"Utilization Fee") on the aggregate principal
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19
amount of such Bank's Advances for each day on which the aggregate outstanding
principal amount of the Advances exceeds an amount equal to 50% of the aggregate
amount of the Commitments at a rate per annum equal to the Applicable
Utilization Fee Rate as in effect from time to time. Any accrued Utilization
Fees shall be paid on each day on which interest is payable hereunder.
SECTION 2.03. Changes in Commitments.
(a) Commitment Increases. The Borrower shall have the right,
no more than once in any calendar year, to increase the aggregate amount of the
Commitments hereunder on and subject to the following terms and conditions:
(i) The Borrower may, by notice to the Administrative Agent
(which shall promptly notify the Banks), request that the Banks
increase ratably their respective Commitments by an aggregate amount up
to but not exceeding $100,000,000, specifying the amount of the
proposed increase and the proposed effective date thereof.
(ii) The Borrower may offer the increase to (x) then existing
Banks, and each such existing Bank shall have the right (but no
obligation) to commit to all or a specified portion of the proposed
increase, or (y) other financial institutions (each an "Additional
Bank") that are not Banks and that are reasonably acceptable to the
Administrative Agent; provided, that the commitment of any such other
financial institution shall be at least $10,000,000.
(iii) Each Bank, acting in its sole discretion, shall, by
notice to the Borrower and the Administrative Agent given no later than
the date (the "Increase Consent Date") that is 15 days after the date
of such increase request (or, if such date is not a Business Day, the
next succeeding Business Day), advise the Borrower and the
Administrative Agent whether or not such Bank agrees to such increase;
provided, that each Bank that determines not to increase its Commitment
(a "Non-Increasing Bank") shall notify the Administrative Agent (which
shall notify the Banks) of such fact promptly after such determination
(but in any event no later than the Increase Consent Date) and any Bank
that does not advise the Borrower on or before the Increase Consent
Date shall be deemed to be a Non-Increasing Bank. The election of any
Bank to agree to such increase shall not obligate any other Bank to so
agree.
(iv) The Administrative Agent shall notify each Bank of such
increase, confirming the effective date thereof (the "Increased
Commitment Date") and the aggregate amount thereof and the amount of
the increase (if any) in each Bank's Commitment; and on such effective
date, each Bank's Commitment shall automatically, without any other
action by any Person, be increased by the additional amount agreed to
by such Bank; provided that, in the event that the amount by which the
Banks have agreed to increase their Commitments exceeds the amount of
the requested increase of the Commitments offered to the Banks, such
increase in the Commitments shall be
Credit Agreement
20
allocated among such Banks pro rata in accordance with the respective
amounts of by which such Banks have agreed to increase their
Commitments.
(v) Each Additional Bank shall, prior to the Increased
Commitment Date, execute and deliver an agreement in form and substance
satisfactory to the Borrower and the Administrative Agent pursuant to
which it undertakes a Commitment hereunder (and such Additional Bank
shall thereupon become a "Bank" for all purposes of this Agreement).
(vi) On the Increased Commitment Date, if the Borrower has
borrowed Advances that remain outstanding on the Increased Commitment
Date, it shall borrow from, and each Bank that is increasing its
Commitment on the Increased Commitment Date and each Additional Bank
shall make Advances to, the Borrower, and (notwithstanding the
provisions of Section 2.14 requiring that prepayments be made ratably
in accordance with the principal amounts of the Advances held by the
Banks) the Borrower shall have prepaid Advances made by the other Banks
in such amounts as shall be necessary, so that after giving effect to
such borrowings and prepayments, the Advances shall be held by the
Banks pro rata in accordance with the respective amounts of their
Commitments (as increased hereby).
(vii) Notwithstanding the foregoing, any increase in the
aggregate Commitments hereunder pursuant to this Section 2.03(a) shall
not be effective unless:
(x) the Borrower shall have given the Administrative
Agent notice of any such increase at least 20 Business Days
prior to any such Increased Commitment Date;
(y) no Default shall have occurred and be continuing
as of the date of the notice referred to in the foregoing
clause (x) or on the Increased Commitment Date; and
(z) the aggregate amount of increase in the aggregate
Commitments pursuant to this Section 2.03(a) may not exceed
$100,000,000, and the amount of any single increase in the
aggregate Commitments pursuant to this Section 2.03(a) shall
be at least $25,000,000.
(b) Commitment Reductions. (i) The aggregate amount of the
Commitments shall automatically be reduced to zero on the Commitment Termination
Date.
(ii) The Borrower shall have the right, upon at least three
Business Days' notice to the Administrative Agent, to terminate in
whole or reduce ratably in part the unutilized portions of the
respective Commitments of the Banks, provided, that the aggregate
amount of the Commitments of the Banks shall not be reduced to an
amount which is less than the aggregate principal amount of the
Advances then outstanding, and provided,
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21
further, that each partial reduction shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof.
(c) Reductions Permanent. The Commitments once terminated or
reduced under this Section 2.03 may not be reinstated.
SECTION 2.04. Repayment of Advances. The Borrower hereby
promises to repay to the Administrative Agent for the account of each Bank the
principal amount of each Advance made by such Bank, and each Advance shall
mature, on the Termination Date.
SECTION 2.05. Interest.
(a) Ordinary Interest. The Borrower shall pay interest on the
unpaid principal amount of each Advance made by each Bank, 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. If such Advance is a Base Rate
Advance, a rate per annum equal to the sum of the Base Rate in effect
from time to time plus the Applicable Margin for Base Rate Advances as
in effect from time to time, payable quarterly in arrears on each
Quarterly Date and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) LIBO Rate Advances. If such Advance is a LIBO Rate
Advance, a rate per annum for the Interest Period for such Advance,
equal to the sum of the LIBO Rate for such Interest Period plus the
Applicable Margin for LIBO Rate Advances as in effect from time to
time, payable on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on the
three-month anniversary of the first day of such Interest Period, and
on the date such LIBO Rate Advance shall be Converted or paid in full.
(b) Default Interest. The Borrower shall pay interest on the
unpaid principal amount of each Advance that is not paid when due (whether at
stated maturity, by acceleration or otherwise), and on the unpaid amount of any
interest, fee or other amount whatsoever payable hereunder that is not paid when
due, payable on demand, at a rate per annum during the period from the due date
thereof to the date on which such amount is paid in full equal to:
(i) in the case of any amount of principal of such Advance:
(x) in the case of any Base Rate Advance 2% per annum
plus the rate which would otherwise be applicable to such
Advance, and
(y) in the case of any LIBO Rate Advance, for the
balance of the then current Interest Period, 2% per annum plus
the rate which would otherwise be
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22
applicable to such Advance for such Interest Period and,
thereafter, 2% per annum plus the Base Rate as in effect from
time to time, and
(ii) in the case of all other amounts, 2% per annum plus the
Base Rate as in effect from time to time.
SECTION 2.06. Additional Interest on LIBO Rate Advances. The
Borrower shall pay to each Bank, so long as such Bank shall be required under
regulations of the Board of Governors of the Federal Reserve System to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or the equivalent), additional interest on the unpaid
principal amount of each LIBO Rate Advance of such Bank, from the date of such
LIBO Rate Advance until such principal amount is paid in full, at an interest
rate per annum equal at all times to the remainder obtained by subtracting (a)
the LIBO Rate for the then current Interest Period for such LIBO Rate Advance
from (b) the rate obtained by dividing such LIBO Rate by a percentage equal to
100% minus the LIBO Rate Reserve Percentage of such Bank for such Interest
Period, payable on each date on which interest is payable on such LIBO Rate
Advance. Any Bank wishing to require payment of such additional interest on any
LIBO Rate Advance shall so notify the Borrower and the Administrative Agent and
shall furnish to the Borrower a certificate (which certificate shall be
conclusive and binding on the Borrower, absent manifest error) setting forth the
basis for such assertion and the amount to which such Bank is then entitled
under this Section.
SECTION 2.07. Interest Rate Determinations; Changes in Pricing
Levels.
(a) Each Reference Bank agrees to furnish to the
Administrative Agent, upon request of the Administrative Agent, timely
information for the purpose of determining the LIBO Rate from time to time. If
any one or more of the
shall not furnish such timely information to the Administrative Agent for the
purpose of determining the LIBO Rate, the Administrative Agent shall determine
the LIBO Rate on the basis of timely information furnished by the remaining
Reference Banks (subject to clause (c) below).
(b) The Administrative Agent shall give prompt notice to the
Borrower and the Banks of the applicable interest rate determined by the
Administrative Agent for the purpose of Section 2.05 and the applicable rate, if
any, furnished by each Reference Bank for the purpose of determining the
applicable interest rate under Section 2.05(a)(ii).
(c) If fewer than two Reference Banks furnish timely
information to the Administrative Agent for determining the LIBO Rate for the
Interest Period for any LIBO Rate Advances,
(i) the Administrative Agent shall forthwith notify the
Borrower and the Banks that the interest rate cannot be determined for
such LIBO Rate Advances for such Interest Period,
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23
(ii) each such Advance will instead be made as a Base Rate
Advance, and
(iii) the obligation of the Banks to make, or to Convert
Advances into, or to Continue Advances as, LIBO Rate Advances shall be
suspended until the Administrative Agent shall notify the Borrower and
the Banks that the circumstances causing such suspension no longer
exist.
(d) If prior to the commencement of the Interest Period for
any Borrowing the Majority Banks notify the Administrative Agent (and the
Administrative Agent notifies the Borrower) that, by reason of circumstances
generally affecting the London or Paris interbank market, as the case may be,
the LIBO Rate does not adequately reflect the cost to such Banks of funding
their Advances constituting part of such Borrowing, the rate of interest
applicable to each such Advance for such Interest Period shall be the Applicable
Margin plus the cost to each such Bank from time to time of funding its Advance
constituting part of such Borrowing. A certificate or certificates of such Bank,
given in good faith, as to such cost of funding shall be conclusive and binding
on the Borrower in the absence of manifest error.
(e) If the Borrower shall fail to select the duration of the
Interest Period for any LIBO Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Banks and
such Advances will be made as Base Rate Advances.
SECTION 2.08. Conversion and Continuation of Advances.
(a) The Borrower may on any Business Day, upon notice given to
the Administrative Agent not later than 12:00 noon (New York City time) on the
third Business Day prior to the date of the proposed Conversion and subject to
the provisions of Sections 2.07 and 2.11, Convert all or any portion of the
outstanding Advances of one Type comprising part of the same Borrowing into
Advances of the other Type provided, that in the case of any such Conversion of
a LIBO Rate Advance into a Base Rate Advance on a day other than the last day of
an Interest Period therefor, the Borrower of such LIBO Rate Advance shall
reimburse the Banks in respect thereof pursuant to Section 8.04(c). Each such
notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Advances or portions thereof to be
Converted, and (iii) if such Conversion is into LIBO Rate Advances, the duration
of the Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower. Each portion of the Advances Converted
as herein provided shall be in an aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof.
(b) The Borrower may on any Business Day, upon notice given to
the Administrative Agent not later than 12:00 noon (New York City time) on the
third Business Day prior to the date of the proposed Continuation and subject to
the provisions of Sections 2.07 and 2.11, Continue all or any portion of the
outstanding LIBO Rate Advances comprising part of the
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24
same Borrowing into LIBO Rate Advances; provided, that any such Continuation of
a LIBO Rate Advance shall be made only on the last day of an Interest Period
therefor. Each such notice of a Continuation shall, within the restrictions
specified above, specify (i) the date of such Continuation, (ii) the Advances or
portions thereof to be Continued, and (iii) the duration of the Interest Period
for each such Advance. Each notice of Continuation shall be irrevocable and
binding on the Borrower. Each portion of the Advances Continued as herein
provided shall be in an aggregate amount of $10,000,000 or an integral multiple
of $1,000,000 in excess thereof.
(c) On the date on which the aggregate unpaid principal amount
of LIBO Rate Advances comprising any Borrowing shall be reduced, by payment or
prepayment or otherwise, to less than $2,500,000, such Advances shall
automatically Convert into Base Rate Advances.
(d) Upon the occurrence and during the continuance of any
Event of Default or any Default under Section 6.01(b) and upon notice from the
Administrative Agent to the Borrower at the request of the Majority Banks, (i)
each LIBO Rate Advance will automatically, on the last day of the Interest
Period therefor, Convert into a Base Rate Advance and (ii) the obligation of the
Banks to make, or to Convert Advances into, or to Continue Advances as, LIBO
Rate Advances shall be suspended.
(e) In the event that the Borrower fails to give a notice of
Continuation of a LIBO Rate Advance as provided in subsection (b) above, such
LIBO Rate Advance shall automatically be Converted into a Base Rate Advance on
the last day of the Interest Period therefor.
SECTION 2.09. Prepayments of Advances. The Borrower may, upon
giving notice to the Administrative Agent not later than 11:00 a.m. New York
City time on the date of prepayment, in the case of a Base Rate Advance, and not
later than two Business Days prior to the date of prepayment in the case of a
LIBO Rate Advance, in each case stating the Advances to be prepaid and the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the outstanding principal amounts of
such Advances in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, that (i) each
partial prepayment of an Advance shall be in an aggregate principal amount not
less than $10,000,000 or an integral multiple of $1,000,000 in excess thereof
(ii) in the case of any such prepayment of a LIBO Rate Advance on a day other
than the last day of an Interest Period therefor, the Borrower shall reimburse
the Banks in respect thereof pursuant to Section 8.04(c).
SECTION 2.10. Increased Costs.
(a) If, due to either (i) the introduction of or any change
(other than any change relating to taxes (as to which Section 2.13 applies) or
any change by way of imposition or increase of reserve requirements included in
the LIBO Rate Reserve Percentage) in or in the interpretation of (to the extent
any such introduction or change occurs after the date hereof) any law or
regulation or (ii) the compliance with any guideline or request of any central
bank or other Governmental Authority adopted or made after the date hereof
(whether or not having the force
Credit Agreement
25
of law), there shall be any increase deemed by such Bank to be material in the
cost to any Bank of agreeing to make or making, funding or maintaining LIBO Rate
Advances, the Borrower shall from time to time, within 30 days after delivery by
such Bank to the Borrower (with a copy to the Administrative Agent) of a
certificate as to the amount of (and specifying in reasonable detail the basis
for) such increased cost, pay (subject to Section 2.10(c)) to the Administrative
Agent for the account of such Bank the amount of the increased costs set forth
in such certificate (which certificate shall be conclusive and binding for all
purposes of this Agreement, absent manifest error); provided, that, before
making any such demand, each Bank agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a
different Applicable Lending Office if the making of such a designation would
avoid the need for, or reduce the amount of, such increased cost and would not,
in the reasonable judgment of such Bank, be otherwise disadvantageous to such
Bank.
(b) (i) If any Bank determines that compliance with any law or
regulation enacted or introduced after the date hereof or any guideline
or request of any central bank or other Governmental Authority adopted
or made after the date hereof (whether or not having the force of law)
affects or would affect the amount of capital required or expected to
be maintained by such Bank or any corporation controlling such Bank
deemed by such Bank to be material and that the amount of such capital
is increased by or based upon the existence of such Bank's Commitment
and other commitments of this type, or the Advances, then, within 30
days after delivery by such Bank to the Borrower (with a copy to the
Administrative Agent) of a certificate as to (and specifying in
reasonable detail the basis for) the Additional Amounts (as hereinafter
defined) requested by such Bank, the Borrower shall pay (subject to
Section 2.10(c)) to the Administrative Agent for the account of such
Bank, from time to time as specified by such Bank, the amount specified
in such certificate (which certificate shall be conclusive and binding
for all purposes, absent manifest error); provided, that, before making
any such demand, each Bank agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to
designate a different Applicable Lending Office if the making of such a
designation would avoid the need for, or reduce the amount of, such
increased cost and would not, in the reasonable judgment of such Bank,
be otherwise disadvantageous to such Bank.
(ii) For purposes hereof, the "Additional Amounts" that may be
requested by any Bank under this Section 2.10(b) means such amounts as
such Bank shall reasonably determine to be sufficient to compensate
such Bank or any corporation controlling such Bank for any costs that
such Bank reasonably determines are attributable to the maintenance by
such Bank (or such corporation) of capital in respect of its Commitment
or the Advances hereunder (such compensation to include, without
limitation, an amount equal to any reduction of the rate of return on
assets or equity of such Bank (or such corporation) to a level below
that which such Bank (or such corporation) could have achieved but for
the enactment or introduction of such law or regulation or the adoption
or making of such guideline or request).
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26
SECTION 2.11. Illegality. Notwithstanding any other provision
of this Agreement, if any Bank shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other Governmental
Authority asserts that it is unlawful, for such Bank or its LIBO Lending Office
to perform its obligations hereunder to make LIBO Rate Advances or to fund or
maintain LIBO Rate Advances hereunder, then, on notice thereof and demand
therefor by such Bank to the Borrower through the Administrative Agent, (a) the
obligation of the Banks to make or to Convert Advances into, or Continue
Advances as, LIBO Rate Advances shall be suspended until the Administrative
Agent shall notify the Borrower and the Banks that the circumstances causing
such suspension no longer exist and (b) the Borrower shall upon demand prepay in
full all LIBO Rate Advances of all Banks then outstanding, together with
interest accrued thereon, unless the Borrower, within five Business Days of
notice from the Administrative Agent, Converts all LIBO Rate Advances of all the
Banks then outstanding into Base Rate Advances in accordance with Section 2.08;
provided, that, before making any such demand, such Bank agrees to use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different LIBO Lending Office if the making of such
a designation would allow such Bank or its LIBO Lending Office to continue to
perform its obligations to make LIBO Rate Advances or to continue to fund or
maintain LIBO Rate Advances and would not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank.
SECTION 2.12. Payments and Computations.
(a) (i) All payments of principal of and interest on any
Advance and all fees and other amounts to be paid by the Borrower under
this Agreement and the Notes shall be made in Dollars, in immediately
available funds, without set-off or counterclaim, to the Administrative
Agent's Account not later than 11:00 a.m. New York City time on the
date on which such payment shall become due (each payment made after
such time on such due date to be deemed to have been made on the next
Business Day).
(ii) The Administrative Agent will promptly cause to be
distributed like funds relating to the payment of principal, interest
or fees ratably (other than amounts payable pursuant to Section 2.06,
2.10, 2.13 or 8.04(c)) to the Banks for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Bank to such Bank for the account of
its Applicable Lending Office, in each case to be applied in accordance
with the terms of this Agreement.
(iii) Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant
to Section 8.07(c), from and after the effective date specified in such
Assignment and Acceptance, the Administrative Agent shall make all
payments hereunder and under the Notes in respect of the interest
assigned thereby to the Bank assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments
in such payments for periods prior to such effective date directly
between themselves.
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27
(b) All computations of interest based on the Base Rate shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the LIBO Rate and
the Federal Funds Rate and of Facility Fees and Utilization Fees shall be made
by the Administrative Agent, and all computations of interest pursuant to
Section 2.06 shall be made by a Bank, on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest, Facility Fees or
Utilization Fees are payable. Each determination by the Administrative Agent of
an interest rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(c) Whenever any payment hereunder or under the Notes would be
due on a day other than a Business Day, such due date shall be extended to the
next succeeding Business Day, and any such extension of such due date shall in
such case be included in the computation of payment of interest or fees, as the
case may be; provided, however, if such extension would cause payment of
interest on or principal of LIBO Rate Advances to be made in the next following
calendar month, such payment shall be made on the next preceding Business Day.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Banks
hereunder that a Borrower will not make such payment in full, the Administrative
Agent may assume that the Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each Bank on such due date an
amount equal to the amount then due such Bank. If and to the extent that the
Borrower shall not have so made such payment in full to the Administrative
Agent, each Bank shall repay to the Administrative Agent forthwith on demand
such amount distributed to such Bank together with interest thereon, for each
day from the date such amount is distributed to such Bank until the date such
Bank repays such amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.13. Taxes.
(a) (i) Subject to Section 2.13(f), any and all payments by
the Borrower hereunder or under the Notes shall be made, in accordance
with Section 2.12, free and clear of and without deduction for any and
all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in
the case of each Bank and the Administrative Agent, taxes imposed on
its net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction under the laws of which such Bank or the
Administrative Agent (as the case may be) is organized or any political
subdivision thereof or by any other jurisdiction as a result of a
present or former connection between such Bank or the Administrative
Agent and such jurisdiction and, in the case of each Bank, taxes
imposed on its net income, and franchise taxes imposed on it in lieu of
net income taxes, by the jurisdiction of such Bank's Applicable Lending
Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes").
Credit Agreement
28
(ii) If the Borrower shall be required by law to deduct
any Taxes from or in respect of any sum payable by the Borrower
hereunder or under any Note to any Bank or the Administrative Agent,
(i) subject to Section 2.13(f), the sum payable shall be increased as
may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 2.13) of Taxes such Bank or the Administrative Agent (as the
case may be) receives an amount equal to the sum it would have received
had no such deductions of Taxes been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made by the Borrower hereunder or
under the Notes or from the execution, delivery or registration of, or otherwise
with respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) Subject to Section 2.13(f), the Borrower will indemnify
each Bank and the Administrative Agent for the full amount of Taxes or Other
Taxes (including, without limitation, any Taxes and Other Taxes imposed by any
jurisdiction on amounts payable under this Section 2.13) paid by such Bank or
the Administrative Agent (as the case may be) in respect of Advances made to the
Borrower and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Bank or the Administrative Agent (as the case may be)
makes written demand therefor, accompanied by a calculation in reasonable detail
of the amount demanded and evidence of the Taxes or Other Taxes (including,
without limitation, taxes of any kind imposed by any jurisdiction or amounts
payable under this Section 2.13) imposed on or paid by the Administrative Agent
or such Bank.
(d) Within 30 days after the date of any payment of Taxes by
the Borrower, the Borrower will furnish to the Administrative Agent, at its
address referred to in Section 8.02, the original or a certified copy of a
receipt evidencing payment thereof.
(e) Each Bank that is entitled to any exemption from or
reduction of withholding tax with respect to payments hereunder and under the
Notes payable to such Bank shall, on or prior to the date of its execution and
delivery of this Agreement (in the case of each Bank that is a signatory hereto)
and on the date of the Assignment and Acceptance pursuant to which it becomes a
Bank (in the case of each other Bank that becomes a party hereto pursuant to
Section 2.03(a), 2.16(b) or 8.07), and from time to time thereafter if requested
in writing by the Borrower (but only so long as such Bank remains lawfully able
to do so), provide the Borrower with such documentation prescribed by applicable
law and reasonably requested by the Borrower to permit payments by the Borrower
under this Agreement and the Notes to be made without withholding or at a
reduced rate of withholding. Each Bank hereby agrees to use reasonable efforts
to inform
Credit Agreement
29
the Borrower of any such documentation or other requirements of which it is
aware that may provide an exemption from or reduction in the rate of withholding
applicable to payments hereunder to such Bank. Notwithstanding any other
provision of this Agreement to the contrary, Taxes shall not include (and the
Borrower shall not be responsible for): (x) any taxes, levies, imposts,
deductions, charges or withholdings that would be imposed on any payment
hereunder or under a Note to a Bank under the law at the time such Bank first
becomes a party to this Agreement and (y) any other taxes, levies, imposts,
deductions, charges or withholdings imposed on any payment hereunder or under a
Note other than such amounts imposed by reason of (A) a change in law after the
date such Bank becomes a party to this Agreement or (B) a change in the location
of such Bank's Applicable Lending Office pursuant to Section 2.13(g).
(f) For any period with respect to which a Bank has failed to
provide the Borrower with the appropriate documentation described in Section
2.13(e) (other than if such failure is due to a change in law occurring
subsequent to the date on which documentation originally was required to be
provided, or if such documentation otherwise is not required under the first
sentence of paragraph(e)(i) or (ii) above), such Bank shall not be entitled to
indemnification by the Borrower under Section 2.13(a) or (c) with respect to
Taxes imposed by the jurisdiction with respect to which such failure occurred;
provided, however, that should a Bank become subject to Taxes because of its
failure to deliver documentation required hereunder, the Borrower shall take
such steps as the Bank shall reasonably request to assist the Bank to recover
such Taxes.
(g) Any Bank claiming any additional amounts payable pursuant
to this Section 2.13 shall use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office(s) if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Bank, be otherwise
disadvantageous to such Bank. In addition, each Bank shall use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) not to change the jurisdiction of its Applicable Lending Office(s)
if the making of such a change would increase the aggregate amount payable by
the Borrower pursuant to this Section 2.13.
SECTION 2.14. Pro Rata Treatment. Except to the extent
otherwise provided herein:
(a) each Borrowing under Section 2.01 hereof shall be made
from the Banks pro rata according to their respective Commitments;
(b) each payment of Facility Fee and Utilization Fee under
Section 2.02 shall be made for the account of the Banks, and each
termination or reduction of the amount of the Commitments under Section
2.03 shall be applied to the respective Commitments of the Banks, pro
rata according to the amounts of their respective Commitments;
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30
(c) LIBO Rate Advances having the same Interest Period shall
be allocated pro rata among the Banks according to their respective
Commitments;
(d) each payment or prepayment by the Borrower of principal of
Advances of any Type shall be made for the account of the Banks pro
rata in accordance with the respective unpaid principal amounts of the
Advances of such Type; and
(e) each payment by the Borrower of interest on Advances of
any Type shall be made for the account of the Banks pro rata in
accordance with the amounts of interest on Advances of such Type then
due and payable to them.
SECTION 2.15. Sharing of Payments, Etc. If any Bank shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise), in Dollars or any other currency, on account of
the Advances obtained by all the Banks, such Bank shall forthwith purchase from
the other Banks such participations in the Advances made by them as shall be
necessary to cause such purchasing Bank to share the excess payment ratably with
each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Bank, such purchase from
each Bank shall be rescinded and such Bank shall repay to the purchasing Bank
the purchase price to the extent of such recovery together with an amount equal
to such Bank's ratable share (according to the proportion of (a) the amount of
such Bank's required repayment to (b) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower agrees
that any Bank so purchasing a participation from another Bank pursuant to this
Section 2.15 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Bank were the direct creditor of the Borrower
in the amount of such participation.
SECTION 2.16. Extension of Maturity Date
(a) The Borrower may, by notice to the Administrative Agent
(which shall promptly notify the Banks) not less than 30 days and not more than
45 days prior to the Commitment Termination Date then in effect hereunder (the
"Existing Termination Date"), request that the Banks extend the Commitment
Termination Date for an additional 364 days from the Existing Termination Date.
Each Bank, acting in its sole discretion, shall, by notice to the Administrative
Agent given not more than 30 days and not less than the date (the "Consent
Date") 20 days prior to the Existing Termination Date, advise the Administrative
Agent whether or not such Bank agrees to such extension; provided that, if such
Bank gives notice of its consent prior to the Consent Date, such consent shall
be revocable until the Consent Date, whereupon it will become irrevocable; and
provided, further, that each Bank that determines not to extend the Existing
Termination Date (a "Non-Extending Bank") shall notify the Administrative Agent
of such fact promptly after such determination (but in any event no later than
the Consent Date) and any Bank that does not advise the Administrative Agent on
or before the Consent Date shall be deemed to be a Non-Extending Bank. The
election of any Bank to agree to such extension (such
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31
a Bank being herein called an "Extending Bank") shall not obligate any other
Bank to so agree. Each Extending Bank shall have the right to increase its
Commitment pro rata in accordance with the Commitments of all the Extending
Banks who are prepared to so increase their Commitments, up to an amount equal
to the aggregate amount of the Commitments represented by the Non-Extending
Banks. The Commitment of each Extending Bank that chooses to increase its
Commitment as provided for in this paragraph (a) shall be automatically
increased on the date the Existing Termination Date is extended. The
Administrative Agent shall notify the Borrower of the decisions of the Banks and
the amount the increase, if any, of any Extending Bank's Commitment not less
than the date (the "Determination Date") 15 days prior to the Existing
Termination Date.
(b) Subject to paragraph (c) of this Section (and subject to the right
of the Extending Banks to increase their Commitments in accordance with
paragraph (a) above), the Borrower shall have the right during the period
commencing on the Consent Date and ending on the Determination Date to replace
such Non-Extending Bank, up to an amount equal to the aggregate amount of the
Commitments of the Non-Extending Banks, with, and add to this Agreement, one or
more new banks (each, an "Additional Commitment Bank") with the approval of the
Administrative Agent (which approval shall not be unreasonably withheld), each
of which Additional Commitment Banks shall enter into an agreement in form and
substance satisfactory to the Borrower and the Administrative Agent pursuant to
which such Additional Commitment Bank shall, effective as of the Existing
Termination Date, undertake a Commitment.
(c) If (and only if) (i) the aggregate amount of the Commitments of the
Banks and the Additional Commitment Banks that have agreed to so extend the
Commitment Termination Date as of the Determination Date shall be more than 50%
of the aggregate amount of the Commitments in effect immediately prior to the
Consent Date, and (ii) the Borrower shall agree in writing, then, effective as
of the Existing Termination Date, the Commitment Termination Date shall be
extended to the date falling 364 days after the Existing Termination Date
(provided that, if such date is not a Business Day, such 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.
Notwithstanding the foregoing, the extension of the Existing
Termination Date shall not be effective with respect to any Bank unless:
(i) no Default shall have occurred and be continuing on each
of the date of the notice requesting such extension, on the Consent
Date and on the Existing Termination Date;
(ii) each of the representations and warranties made by the
Borrower in Article IV (including without limitation Section 4.01(b))
shall be true and complete on and as of each of the date of the notice
requesting such extension, the Consent Date and the Existing
Termination Date with the same force and effect as if made on and as of
such
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date (or, if any such representation or warranty is expressly
stated to have been made as of a specific date, as of such specific
date); and
(iii) each Non-Extending Bank shall have been paid in full by
the Borrower all amounts owing to such Bank hereunder on or before the
Existing Termination Date.
Even if the Commitment Termination Date is extended as aforesaid, the Commitment
of each Non-Extending Bank shall terminate on the Existing Termination Date.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Borrowing by the
Borrower. The obligation of each Bank to make an Advance to the Borrower on the
occasion of the initial Borrowing by the Borrower is subject to the condition
precedent that the Administrative Agent shall have received, on or prior to the
Closing Date, the following documents and evidence, each (unless otherwise
specified below) dated the date of the Closing Date and in form and substance
satisfactory to the Administrative Agent and (except for the Notes) in
sufficient copies for each Bank:
(a) The Notes, payable to the order of the respective Banks.
(b) Certified copies of the charter and by-laws (or equivalent
documents) of the Borrower and of all corporate authority for the
Borrower (including, without limitation, board of director resolutions
and evidence of the incumbency, including specimen signatures, of
officers) with respect to the execution, delivery and performance of
this Agreement and the Notes and each other document to be delivered by
the Borrower from time to time in connection herewith and the
extensions of credit hereunder (and the Administrative Agent and each
Bank may conclusively rely on such certificate until it receives notice
in writing from the Borrower to the contrary).
(c) A favorable opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.,
General Counsel for the Borrower, substantially in the form of Exhibit
C.
(d) A favorable opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP, special New York counsel for the Administrative Agent,
substantially in the form of Exhibit D.
(e) A certificate of a senior officer of the Borrower
certifying that (i) no Default has occurred and is continuing as of the
date thereof, and (ii) the representations and warranties contained in
Section 4.01 are true and correct on and as of the date thereof as
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33
if made on and as of such date (except to the extent any of such
representations and warranties expressly relate to an earlier date).
SECTION 3.02. Conditions Precedent to Each Borrowing. The
obligation of each Bank to make an Advance on the occasion of each Borrowing
(including, without limitation, the initial Borrowing), shall be subject to the
further conditions precedent that on the date of such Borrowing the following
statements shall be true (and each of the giving of the applicable Notice of
Borrowing and the acceptance by the applicable Borrower of the proceeds of such
Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Borrowing such statements are true):
(a) the representations and warranties contained in Section
4.01 (not including, in the case of any Borrowing after the initial
Borrowing hereunder, the representation and warranty set forth in
Section 4.01(b)) are true and correct in all material respects on and
as of the date of such Borrowing, before and after giving effect to
such Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date (except to the extent any of such
representations and warranties expressly relate to an earlier date),
and
(b) no Default has occurred and is continuing, or would result
from such Borrowing or from the application of the proceeds thereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Borrower
represents and warrants that:
(a) Financial Condition. The Consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as at December 31, 1998 and
the related Consolidated statements of income and of cash flows for the
fiscal year ended on such date, reported on by PricewaterhouseCoopers
LLP, copies of which have heretofore been furnished to each Bank,
present fairly the Consolidated financial condition of the Borrower and
its Consolidated Subsidiaries as at such date, and the Consolidated
results of their operations and their Consolidated cash flows for the
fiscal year then ended. All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance
with GAAP applied consistently throughout the period involved (except
as approved by such accountants or a Responsible Officer of the
Borrower, as the case may be, and as disclosed therein). Neither the
Borrower nor any of its Consolidated Subsidiaries had, at December 31,
1998, any material contingent liability or liability for taxes, or any
long-term lease or unusual forward or long-term commitment, including,
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34
without limitation, any interest rate or foreign currency swap or
exchange transaction, which is not reflected in the foregoing
statements or in the notes thereto.
(b) No Change. Since December 31, 1998, there has been no
development or event which has had or could reasonably be expected to
have a Material Adverse Effect.
(c) Existence; Compliance with Law. The Borrower (i) is duly
organized and validly existing and in good standing under the laws of
the State of Delaware, (ii) has the power and authority, and the legal
right, to own and operate its Property, to lease the Property it
operates as lessee and to conduct the business in which it is currently
engaged, (iii) is duly qualified as a foreign organization and in good
standing under the laws of each jurisdiction where its ownership, lease
or operation of Property or the conduct of its business requires such
qualification, except where the failure to be so qualified and/or in
good standing could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, and (iv) is in
compliance with all Requirements of Law except to the extent that the
failure to comply therewith could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(d) Corporate Power; Authorization; Enforceable Obligations.
The Borrower has the power and authority, and the legal right, to make,
deliver and perform this Agreement and to borrow hereunder and has
taken all necessary action to authorize the borrowings on the terms and
conditions of this Agreement and the Notes and to authorize the
execution, delivery and performance of this Agreement and the Notes to
which it is a party. No consent or authorization of, filing with,
notice to or other act by or in respect of (including any exchange
control approval), any Governmental Authority or any other Person is
required in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of this
Agreement or the Notes. This Agreement has been, and the Notes to which
it is a party will be, duly executed and delivered on behalf of the
Borrower. This Agreement constitutes, and the Notes to which it is a
party when executed and delivered will constitute, the legal, valid and
binding obligations of the Borrower enforceable against the Borrower in
accordance with their terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally,
general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair
dealing.
(e) No Legal Bar. The execution, delivery and performance by
the Borrower of this Agreement and the Notes, the Borrowings hereunder
and the use of the proceeds thereof will not violate any Requirement of
Law or Contractual Obligation of the Borrower or of any of its
Subsidiaries and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective Properties
pursuant to any such Requirement of Law or Contractual Obligation.
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35
(f) No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is
pending or, to the knowledge of the Borrower, threatened by or against
the Borrower or any of its Subsidiaries or against any of its or their
respective Properties (i) with respect to any of this Agreement, the
Notes or any of the transactions contemplated hereby or thereby or (ii)
which could reasonably be expected to have a Material Adverse Effect.
(g) No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect which could reasonably be
expected to have a Material Adverse Effect. No Default has occurred and
is continuing.
(h) Ownership of Properties; Liens. The Borrower and each of
its Subsidiaries has good record and marketable title in fee simple to
all real Property owned by it and the Borrower and each of its
Subsidiaries has a valid leasehold interest or occupancy rights with
respect to all real Property leased or occupied pursuant to the
Material Leases, and none of such owned real Property is subject to any
Lien except Liens permitted by Section 5.02(b). The Borrower and each
of its Subsidiaries has such title to their respective personal
Property, tangible and intangible, as is necessary to conduct their
respective businesses in the same manner as such businesses have been
conducted, and none of such Property is subject to any Lien except as
permitted by Section 5.02(b).
(i) Intellectual Property. The Borrower and each of its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the
conduct of its business as currently conducted (the "Intellectual
Property") except for those the failure to own or license which could
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. No claim has been asserted and is pending by
any Person challenging or questioning the use by the Borrower or any of
its Subsidiaries of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does the Borrower
know of any valid basis for any such claim, except for any such claims
which could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The use of such
Intellectual Property by the Borrower and its Subsidiaries does not
infringe on the rights of any Person, except for such claims and
infringements that, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(j) No Burdensome Restrictions. No Requirement of Law or
Contractual Obligation of the Borrower or any of its Operating
Subsidiaries could reasonably be expected to have a Material Adverse
Effect.
(k) Taxes. The Borrower and each of its Subsidiaries has filed
or caused to be filed all tax returns which, to the knowledge of the
Borrower, are required to be filed and has paid all taxes shown to be
due and payable on said returns or on any assessments
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36
made against it or any of its Property and all other taxes, fees or
other charges imposed on it or any of its Property by any Governmental
Authority (other than any such taxes, fees or other charges the amount
or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Borrower or
its Subsidiaries, as the case may be, and other than where failures
timely and properly to file could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect);
no tax Lien has been filed, and, to the knowledge of the Borrower, no
claim is being asserted, with respect to any such tax, fee or other
charge (other than, such Liens, taxes, fees and other charges as could
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect).
(l) Margin Regulations. No part of the proceeds of any
Advances will be used for "purchasing" or "carrying" any "margin stock"
within the respective meanings of each of the quoted terms under
Regulation U of the Board of Governors of the Federal Reserve System as
now and from time to time hereafter in effect.
(m) ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or
Section 302 of ERISA) has occurred during the five-year period prior to
the date on which this representation is made or deemed made with
respect to any Plan or is reasonably expected to occur, and each Plan
has complied in all material respects with the applicable provisions of
ERISA and the Code. No termination of a Single Employer Plan has
occurred, no Lien in favor of the PBGC or a Plan has arisen, during
such five-year period, and neither the Borrower nor any Commonly
Controlled Entity has received any notice relating to an intent to
terminate any such Single Employer Plan or impose any such Lien. Except
as set forth on Schedule I, the present value of all accrued benefits
under each Single Employer Plan (based on those assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did
not, as of the last annual valuation date prior to the date on which
this representation is made or deemed made, exceed the fair market
value of the assets of such Plan allocable to such accrued benefits.
Neither the Borrower nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan, and neither
the Borrower nor any Commonly Controlled Entity would become subject to
any liability under ERISA if the Borrower or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which
this representation is made or deemed made. No filing has been made
pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for waiver of the minimum funding standard of any Single
Employer Plan. No such Multiemployer Plan is in Reorganization or
Insolvent.
(n) Investment Company Act; Other Regulations. The Borrower is
not an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act
of 1940, as amended. The Borrower is not subject to regulation under
any United States Federal or state statute or regulation (other
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37
than Regulation X of the Board of Governors of the Federal Reserve
System) which limits its ability to incur Debt.
(o) Use of Proceeds. The proceeds of the Advances will be used
by the Borrower (i) for acquisitions that are not Hostile Acquisitions
in accordance with Section 5.02(c) and (ii) for other general corporate
purposes.
(p) Environmental Matters.
(i) To the best knowledge of the Borrower, the
facilities and Property owned, leased or operated by the
Borrower or any of its Subsidiaries (the "Applicable
Properties") do not contain, and have not previously
contained, any Materials of Environmental Concern in amounts
or concentrations which (x) constitute or constituted a
violation of, or (y) could reasonably be expected to give rise
to liability under, any Environmental Law, except in either
case insofar as such violation or liability, or any
aggregation thereof, could not reasonably be expected to have
a Material Adverse Effect.
(ii) To the best knowledge of the Borrower, the
Applicable Properties and all operations at the Applicable
Properties are in compliance, and have in the last five years
been in compliance, in all material respects with all
applicable Environmental Laws, and there is no contamination
at, under or about the Properties or violation of any
Environmental Law with respect to the Applicable Properties or
the business operated by the Borrower or any of its
Subsidiaries (the "Business"), except in either case insofar
as any such noncompliance, contamination or violation, or any
aggregation thereof, could not reasonably be expected to have
a Material Adverse Effect.
(iii) Neither the Borrower nor any of its
Subsidiaries has received any notice of violation, alleged
violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with
Environmental Laws with regard to any of the Applicable
Properties or the Business, nor does the Borrower have
knowledge or reason to believe that any such notice will be
received or is being threatened, except insofar as such notice
or threatened notice, or any aggregation thereof, could not
reasonably be expected to have a Material Adverse Effect.
(iv) Materials of Environmental Concern have not been
transported or disposed of from the Applicable Properties in
violation of, or in a manner or to a location which could
reasonably be expected to give rise to liability under, any
Environmental Law, nor have any Materials of Environmental
Concern been generated, treated, stored or disposed of at, on
or under any of the Applicable Properties in violation of, or
in a manner that could reasonably be expected to give rise to
liability under, any applicable Environmental Law, except
insofar as
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38
any such violation or liability referred to in this paragraph,
or any aggregation thereof, could not reasonably be expected
to have a Material Adverse Effect.
(v) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of the
Borrower, threatened, under any Environmental Law to which the
Borrower or any of its Subsidiaries is or will be named as a
party with respect to the Applicable Properties or the
Business, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding
under any Environmental Law with respect to the Applicable
Properties or the Business, except insofar as such proceeding,
action, decree, order or other requirement, or any aggregation
thereof, could not reasonably be expected to have a Material
Adverse Effect.
(vi) To the best knowledge of the Borrower, there has
been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising
from or related to the operations of the Borrower or any
Subsidiary in connection with the Applicable Properties or
otherwise in connection with the Business, in violation of or
in amounts or in a manner that could reasonably give rise to
liability under Environmental Laws, except insofar as any such
violation or liability referred to in this paragraph, or any
aggregation thereof, could not reasonably be expected to have
a Material Adverse Effect.
(q) Accuracy of Information. No statement or information
contained in this Agreement, or any other document, certificate or
written statement furnished to the Administrative Agent or the Banks or
any of them, by or on behalf of the Borrower for use in connection with
the transactions contemplated by this Agreement (including, without
limitation, any financial information furnished pursuant to Section
5.01(a)), taken as a whole, contained as of the date such statement,
information, document, certificate or written statement was so
furnished any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained
herein or therein in light of the circumstances in which they were was
made not misleading. The projections and pro forma financial
information, if any, contained in the materials referenced above are
based upon good faith estimates and assumptions believed by management
of the Borrower to be reasonable at the time made, it being recognized
by the Banks that such financial information as it relates to future
events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from
the projected results set forth therein. There is no fact known to the
Borrower that could reasonably be expected to have a Material Adverse
Effect that has not been expressly disclosed herein or in such other
documents, certificates and written statements furnished to the
Administrative Agent for the benefit of the Banks for use in connection
with the transactions contemplated hereby.
(r) Insurance. The Borrower and its Operating Subsidiaries
maintain with financially sound and reputable insurance companies
insurance on (or, to the extent
Credit Agreement
39
consistent with prudent business practice, a program of self-insurance
with respect to) all their respective Property and operations in at
least such amounts and against at least such risks (but including in
any event public liability, product liability and business
interruption) as are usually insured against in the same general area
by companies engaged in the same or a similar business.
(s) Year 2000. The Borrower has reviewed its operations and
those of its Subsidiaries with a view to assessing whether it or its
Subsidiaries' respective businesses will, in the receipt, transmission,
processing, manipulation, storage, retrieval, retransmission or other
utilization of data, be vulnerable to a Year 2000 Problem (as defined
below). Based on such review, the Borrower has no reason to believe
that a Material Adverse Effect could reasonably be expected to result
from a Year 2000 Problem. For purposes of this paragraph (s), "Year
2000 Problem" means any significant risk that computer hardware or
software used in the business or operations of the Borrower or any of
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 December 31,
1999.
(t) Ranking. The payment obligations of the Borrower hereunder
and under the Notes are and will at all times be unconditional, senior
unsecured and unsubordinated general obligations of the Borrower, and
rank and will at all times rank at least pari passu with all other
present and future unsecured and unsubordinated Debt of the Borrower.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any principal
of or interest on any Advance or any Note or any other amount payable hereunder
shall remain outstanding or any Bank shall have any Commitment hereunder, the
Borrower covenants and agrees that:
(a) Financial Statements; Compliance Certificates. The
Borrower will furnish to the Administrative Agent and each Bank:
(i) as soon as available, but in any event within 100
days after the end of each fiscal year of the Borrower, a copy
of the Consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at the end of such year and the
related Consolidated statements of income and retained
earnings and of cash flows for such year, setting forth in
each case in comparative form the figures for the previous
year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of
the scope of the audit, by PricewaterhouseCoopers LLP or other
independent certified public accountants of nationally
recognized standing; and
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40
(ii) as soon as available, but in any event not later
than 50 days after the end of each of the first three quarters
of each fiscal year of the Borrower, the unaudited
Consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at the end of such quarter and
the related unaudited Consolidated statements of income and
retained earnings and of cash flows of the Borrower and its
Consolidated Subsidiaries for such quarter and the portion of
the fiscal year through the end of such quarter, setting forth
in each case in comparative form the figures for the previous
year, certified by a Responsible Officer of the Borrower as
being fairly stated in all material respects (subject to
normal year-end audit adjustments);
all such financial statements shall be complete and correct in all
material respects and shall be prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods
reflected therein and with prior periods (except as approved by such
accountants or officer, as the case may be, and disclosed therein).
(b) Certificates; Other Information. The Borrower will furnish
to the Administrative Agent and each Bank:
(i) concurrently with the delivery of the financial
statements referred to in Section 5.01(a)(i), a certificate of
the independent certified public accountants reporting on such
financial statements stating that in making the examination
necessary therefor no knowledge was obtained of any Default,
except as specified in such certificate;
(ii) concurrently with the delivery of the financial
statements referred to in Sections 5.01(a)(i) and (ii), a
certificate of a Responsible Officer of the Borrower, (x)
stating that, to the best of such Responsible Officer's
knowledge, during such period the Borrower has observed or
performed all of its covenants and other agreements, and
satisfied every condition, contained in this Agreement to be
observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default
except as specified in such certificate and (y) setting forth
in reasonable detail the calculations required to determine
compliance with Section 5.03, together with, in the event that
there is any change in GAAP subsequent to the date hereof, a
reconciliation of the calculations used to determine
compliance with Section 5.03 to the financial statements
delivered in connection with such certificate;
(iii) within five days after the same are sent,
copies of all financial statements and reports which the
Borrower sends to the holders of its capital stock generally,
and within five days after the same are filed, copies of all
financial statements and reports which the Borrower may make
to, or file with, the
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41
Securities and Exchange Commission or any successor or
analogous Governmental Authority;
(iv) concurrently with the delivery of the financial
statements referred to in Sections 5.01(a)(i) and (ii), in the
event that any Subsidiary of the Borrower has become an
Operating Subsidiary or any Operating Subsidiary has ceased to
constitute an Operating Subsidiary, in each case during the
immediately preceding fiscal quarter (or, in the case of the
financial statements referred to in Section 5.01(a)(i), the
fourth fiscal quarter), a notice thereof; and
(v) promptly, such additional financial and other
information as the Administrative Agent or any Bank may from
time to time reasonably request.
(c) Payment of Obligations. The Borrower will, and will cause
each of its Operating Subsidiaries to, pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the
case may be, all its obligations of whatever nature, except where the
amount or validity thereof is being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP (or, in
the case of a Foreign Operating Subsidiary, generally accepted
accounting principles in effect in the relevant jurisdiction) with
respect thereto have been provided on the books of the Borrower or its
Operating Subsidiaries, as the case may be, and except to the extent
that the failure to so pay, discharge or otherwise satisfy its
obligations could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(d) Conduct of Business and Maintenance of Existence;
Compliance with Contractual Obligations and Requirements of Law. The
Borrower will, and will cause each of its Operating Subsidiaries to,
(i) continue to engage in business of the same general type as
conducted by the Borrower and its Operating Subsidiaries on the date
hereof, together with such other businesses as are reasonably related
or complementary thereto, (ii) preserve, renew and keep in full force
and effect its corporate existence except (x) as otherwise permitted
pursuant to Section 5.02(c) and (y) solely with respect to its
Operating Subsidiaries and other than by reason of a merger,
consolidation, amalgamation, liquidation, winding up or dissolution, if
failure to do so would not be adverse to the Banks in any material
respect, (iii) take all reasonable action to maintain all rights,
privileges and franchises necessary in the normal conduct of its
business except as otherwise permitted pursuant to Section 5.02(c) and
except if failure to do so would not be adverse to the Banks in any
material respect, and (iv) comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply
therewith could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(e) Maintenance of Property; Insurance. The Borrower will, and
will cause each of its Operating Subsidiaries to, (i) keep all material
Property useful and necessary in its business in good working order and
condition (ordinary wear and tear excepted), (ii)
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maintain with financially sound and reputable insurance companies
insurance on (or, to the extent consistent with prudent business
practice, a program of self-insurance with respect to) all its Property
and operations in at least such amounts and against at least such risks
(but including in any event public liability, product liability and
business interruption) as are usually insured against in the same
general area by companies engaged in the same or a similar business,
and (iii) furnish to the Administrative Agent and each Bank, upon
written request, full information as to the insurance carried.
(f) Inspection of Property; Books and Records; Discussions.
The Borrower will, and will cause each of its Operating Subsidiaries
to, keep proper books of records and account in conformity with GAAP
(or, in the case of a Foreign Operating Subsidiary, generally accepted
accounting principles in effect or applied in the relevant
jurisdiction) and all Requirements of Law; and permit representatives
of any Bank to visit and inspect any of its Property and examine and
make abstracts from any of its books and records at any reasonable time
and as often as may reasonably be desired and to discuss the business,
operations, Property and financial and other condition of the Borrower
and its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and with its independent certified public accountants.
(g) Notices. The Borrower will promptly give notice to the
Administrative Agent and each Bank of:
(i) the occurrence of any Default;
(ii) any (x) default or event of default under any
Contractual Obligation of the Borrower or any of its
Subsidiaries which could reasonably be expected to have a
Material Adverse Effect or (y) litigation, investigation or
proceeding which may exist at any time as to which there is a
reasonable possibility of an adverse determination and which
if adversely determined, could reasonably be expected to have
a Material Adverse Effect;
(iii) the following events, as soon as possible and
in any event within 30 days after the Borrower knows or has
reason to know thereof: (x) the occurrence or expected
occurrence of any Reportable Event with respect to any Plan, a
failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (y) the institution
of proceedings or the taking of any other action by the PBGC
or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Plan; and
(iv) any development or event which could reasonably
be expected to have a Material Adverse Effect.
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43
Each notice pursuant to this subsection shall be accompanied by a
statement of a Responsible Officer of the Borrower setting forth
details of the occurrence referred to therein and stating what action
the relevant Borrower or Subsidiary proposes to take with respect
thereto.
(h) Environmental Laws. The Borrower will, and will cause each
of its Operating Subsidiaries to:
(i) comply with, and ensure compliance by all tenants
and subtenants, if any, with, all applicable Environmental
Laws and obtain and comply with and maintain, and ensure that
all tenants and subtenants obtain and comply with and
maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental
Laws, except in any such case to the extent that failure to do
so could not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect; and
(ii) conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and
other actions required under Environmental Laws, except to the
extent that the failure to do so could not, individually or in
the aggregate, reasonably be expected to have a Material
Adverse Effect, and promptly comply with all lawful orders and
directives of all Governmental Authorities regarding
Environmental Laws, except to the extent that the same are
being contested in good faith by appropriate proceedings and
the pendency of such proceedings could not be reasonably
expected to have a Material Adverse Effect.
(i) Governmental Authorizations. The Borrower will promptly
from time to time obtain and maintain in full force and effect all
consents or authorizations of, or approvals by, any Governmental
Authority necessary under the laws of each jurisdiction under whose
laws it is organized or in which it is domiciled for the execution,
delivery and performance by it of this Agreement and the Notes.
(j) Ranking. The Borrower will promptly take all actions as
may be necessary to ensure that the payment obligations of the Borrower
under this Agreement and the Notes will at all times constitute
unconditional, senior unsecured and unsubordinated general obligations
of the Borrower ranking at least pari passu with all other present and
future unsecured and unsubordinated Debt of the Borrower.
SECTION 5.02. Negative Covenants. So long as any principal of
or interest on any Advance or any Note or any other amount payable hereunder
shall remain outstanding or any Bank shall have any Commitment hereunder, the
Borrower covenants and agrees that:
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44
(a) Subsidiary Debt. The Borrower will not permit any of its
Subsidiaries to create, incur, assume or at any time be liable with
respect to any Debt, except for:
(i) Debt incurred pursuant to the Credit Agreement
dated as of May 8, 1998 among the Borrower, certain of the
Borrower's Subsidiaries, the banks party thereto and Citibank,
N.A., as Administrative Agent;
(ii) Debt outstanding on December 31, 1998 and any
refinancings, renewals, extensions or refundings thereof which
do not increase the aggregate principal amount thereof;
(iii) Debt owing to the Borrower or to other
Wholly-Owned Subsidiaries of the Borrower; and
(iv) additional Debt in an aggregate principal amount
for all Subsidiaries at any one time outstanding not exceeding
$200,000,000.
(b) Liens. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien
of any kind upon or in any of their respective Property, whether now
owned or hereafter acquired, except for:
(i) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings, provided
that adequate reserves with respect thereto are maintained on
the books of the Borrower or its Subsidiaries, as the case may
be, in conformity with GAAP (or, in the case of a Foreign
Operating Subsidiary, generally accepted accounting principles
in the relevant jurisdiction);
(ii) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the
ordinary course of business which are not overdue for a period
of more than 60 days or which are being contested in good
faith by appropriate proceedings or which are bonded;
(iii) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance
carriers under insurance or self-insurance arrangements;
(iv) deposits to secure the performance of bids,
trade contracts (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the
ordinary course of business;
(v) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not
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45
substantial in amount and which do not in any case materially
detract from the value of the Property subject thereto or
materially interfere with the ordinary conduct of the business
of the Borrower or such Subsidiary;
(vi) Liens securing Debt of the Borrower and its
Subsidiaries incurred to finance the acquisition of fixed or
capital assets, provided that (x) such Liens shall be created
substantially simultaneously with the acquisition of such
fixed or capital assets, (y) such Liens do not at any time
encumber any Property other than the Property financed by such
Debt and (z) the principal amount of Debt secured by any such
Lien shall at no time exceed an amount equal to 100% of the
original purchase price of such Property;
(vii) Liens on the Property of a corporation that
becomes a Subsidiary after the date hereof, provided that such
Liens existed at the time such corporation became a Subsidiary
and were not created in anticipation thereof;
(viii) any Lien renewing, extending, refunding or
refinancing any Lien permitted by clause (vi) or (vii) above
or (xii) below, provided that the principal amount of Debt
secured by such Lien is not increased, and such Lien is not
extended to other Property;
(ix) Liens on Property of a Subsidiary to secure
obligations of such Subsidiary to the Borrower or another
Subsidiary;
(x) judgment Liens, so long as the finality of such
judgment is being actively contested in good faith by
appropriate proceedings and execution thereon is stayed;
(xi) other Liens securing Debt, provided that the
aggregate principal amount of Debt of the Borrower and its
Subsidiaries secured by such Liens permitted by this clause
(xi) does not at any time exceed $25,0000,000; and
(xii) Liens set forth in Schedule II;
provided, however, that no Lien otherwise permitted under
clause (vi), (vii), (viii) or (xi) hereof shall be permitted
if such Lien secures Debt which is prohibited under this
Agreement.
(c) Fundamental Changes. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any merger, consolidation
or amalgamation, or liquidate, wind up or dissolve (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of (each a "Transfer"), all or substantially all
of their respective Property, except that:
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46
(i) any Subsidiary of the Borrower may be merged,
consolidated or amalgamated with or into the Borrower
(provided that the Borrower shall be the continuing or
surviving corporation) or with or into any one or more other
Subsidiaries of the Borrower;
(ii) any Subsidiary of a Borrower may liquidate,
wind-up or dissolve if such liquidation, winding-up or
dissolution is in the best interests of the Borrower and would
not be adverse to the interests of the Banks in any material
respect;
(iii) any Subsidiary of a Borrower may Transfer any
or all of its Property (upon voluntary liquidation or
otherwise) to the Borrower or any other Subsidiary of the
Borrower;
(iv) the Borrower and any Subsidiary of a Borrower
may merge, consolidate or amalgamate with or into, any other
Person provided that (x) both immediately prior to such
merger, consolidation or amalgamation and after giving effect
thereto, no Default shall exist, (y) in the Borrower's
reasonable judgment, a Default under Section 5.03 is not
likely to occur on the last day of the fiscal quarter
immediate succeeding such merger, consolidation or
amalgamation and (z) in the case of a merger, consolidation or
amalgamation involving the Borrower, the Borrower shall be the
continuing or surviving corporation and in the case of a
merger consolidation or amalgamation involving any Subsidiary,
such Subsidiary shall be the continuing or surviving
corporation;
(v) the Borrower and its Subsidiaries may make
Investments permitted by Section 5.02(d);
(vi) the Borrower and its Subsidiaries may Transfer
obsolete or worn-out Property in the ordinary course of
business;
(vii) the Borrower and its Subsidiaries may Transfer
Property for not less than fair market value in the ordinary
course of business, provided that the aggregate purchase price
for all such Transfers by the Borrower and its Subsidiaries
after the date hereof shall not exceed $100,000,000;
(viii) the Borrower and its Subsidiaries may sell
inventory in the ordinary course of business;
(ix) the Borrower and its Subsidiaries may sell or
discount without recourse accounts receivable arising in the
ordinary course of business in connection with the compromise
or collection thereof; and
(x) the Borrower and its Subsidiaries may sell the
New York Real Property for not less than fair market value.
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47
(d) Loans, Advances, Acquisitions and Liabilities. The
Borrower will not, and will not permit any of its Subsidiaries to, make
any advance, loan, extension of credit or capital contribution to, or
purchase any stock, bonds, notes, debentures or other securities of or
any Property constituting a business unit of, or make any other
investment in, any Person ("Investments"), except:
(i) extensions of trade credit in the ordinary course
of business;
(ii) investments in Cash Equivalents;
(iii) the Borrower and any Subsidiary of the Borrower
may consummate any Acquisition provided that (w) both
immediately prior to such Acquisition and after giving effect
thereto, no Default shall exist, (x) in the Borrower's
reasonable judgment, a Default under Section 5.03 is not
likely to occur on the last day of the fiscal quarter
immediate succeeding such Acquisition, (y) in the case of an
Acquisition involving the Borrower, the Borrower shall be the
continuing or surviving corporation and in the case of an
Acquisition involving any Subsidiary, such Subsidiary shall be
the continuing or surviving corporation, and (z) such
Acquisition is not a Hostile Acquisition;
(iv) loans and advances to employees of the Borrower
and its Subsidiaries for travel, entertainment and relocation
expenses and in connection with management incentive plans, in
each case in the ordinary course of business, and loans to
officers of the Borrower and their respective Subsidiaries in
the ordinary course of business, in an aggregate amount for
the Borrower and their respective Subsidiaries not to exceed
$10,000,000 at any one time outstanding;
(v) Investments by the Borrower in any Subsidiary of
the Borrower and Investments by Subsidiaries of the Borrower
in the Borrower and in any Subsidiary of the Borrower; and
(vi) other Investments (including Investments in any
Joint Venture), provided that the Net Amount of such
Investments shall not exceed, in the aggregate, $100,000,000.
(e) Dividends and Purchase of Stock. At any time when a
Default has occurred and is continuing, the Borrower will not, nor will
it permit any of its Subsidiaries to, declare or pay any dividends on
any shares of any class of its capital stock, or make any distributions
to partners or members, or apply any of its Property to the purchase,
redemption or other retirement of, or set apart any sum for the payment
of any dividends on, or for the purchase, redemption or other
retirement of, or make any other distribution by reduction of capital
or otherwise in respect of, any shares of any class of capital stock or
other equity ownership interests of the Borrower, or purchase or
acquire any shares of
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48
any class of capital stock or other equity ownership interests of the
Borrower except that (i) any Subsidiary may declare and pay dividends
with respect to its capital stock and (ii) the Borrower may (x) declare
and pay dividends payable solely in shares of its capital stock and (y)
pay any dividend declared prior to the occurrence of such Default (and
not in anticipation thereof), provided, in the case of this clause (y),
that such payment is made within 30 days after the declaration of such
dividend.
(f) Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of
Property or the rendering of any service, with any Affiliate unless
such transaction is (i) not otherwise prohibited under this Agreement
and (ii) upon fair and reasonable terms no less favorable to the
Borrower or such Subsidiary, as the case may be, than it would obtain
in a comparable arm's length transaction with a Person which is not an
Affiliate.
SECTION 5.03 Financial Covenants. So long as any principal of
or interest on any Advance or any Note or any other amount payable hereunder
shall remain outstanding or any Bank shall have any Commitment hereunder, the
Borrower covenants and agrees that:
(a) Debt to EBITDA Ratio. It will not permit the Debt to
EBITDA Ratio as at the last day of any fiscal quarter to be greater
than 3.25 to 1.0.
(b) Interest Coverage Ratio. It will not permit the Interest
Coverage Ratio as at the last day of any fiscal quarter to be less than
3.50 to 1.0.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Advance when due in accordance with the terms hereof, whether at
maturity, by notice of intention to prepay or otherwise; or
(b) The Borrower shall fail to pay any interest on any
Advance, or any fee or other amount payable hereunder, within three
days after any such interest or other amount becomes due in accordance
with the terms hereof; or
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49
(c) Any representation or warranty made or deemed made by the
Borrower herein or which is contained in any certificate, document or
financial or other statement furnished by it at any time under or in
connection with this Agreement shall prove to have been incorrect in
any material respect on or as of the date made or deemed made; or
(d) The Borrower shall default in the observance or
performance of any agreement contained in Section 5.02 of this
Agreement; or
(e) The Borrower shall default in the observance or
performance of any other agreement contained in this Agreement (other
than as provided in paragraphs (a) through (d) of this Section), and
such default shall continue unremedied for a period of 30 days after
the earlier of (i) the date upon which written notice thereof is given
to the Borrower by the Administrative Agent or the Majority Banks or
(ii) the date upon which a Responsible Officer of the Borrower becomes
aware of such default; or
(f) The Borrower or any of its Subsidiaries shall (i) default
in any payment of principal of or interest of any Debt (other than the
Advances) or any Hedging Obligation, beyond the period of grace (not to
exceed 30 days), if any, provided in the instrument or agreement under
which such Debt or Hedging Obligation, as the case may be, was created;
or (ii) default in the observance or performance of any other agreement
or condition relating to any such Debt or such Hedging Obligation 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 such Debt or such Hedging Obligation
(or a trustee or agent on behalf of such holder or holders) to cause,
with the giving of notice or the lapse of time or both if required,
such Debt or such Hedging Obligation to become due prior to its stated
maturity; provided, however, that no Default shall exist under this
paragraph unless the aggregate amount of Debt and Hedging Obligations
at any time in respect of which any default or other event or condition
referred to in this paragraph shall have occurred shall be equal to at
least $5,000,000 (or the equivalent in any one or more other
currencies); or
(g) (i) The Borrower or any of its Domestic Operating
Subsidiaries or Material Foreign Operating Subsidiaries shall commence
any case, proceeding or other action (x) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (y) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for
it or for all or any substantial part of its Property, or the Borrower
or any of its Domestic Operating Subsidiaries or Material Foreign
Operating Subsidiaries shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against the Borrower
or any of its Domestic Operating Subsidiaries or Material Foreign
Operating Subsidiaries
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50
any case, proceeding or other action of a nature referred to in clause
(i) above which (x) results in the entry of an order for relief or any
such adjudication or appointment or (y) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall
be commenced against the Borrower or any of its Domestic Operating
Subsidiaries or Material Foreign Operating Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its Property which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv)
the Borrower or any of its Domestic Operating Subsidiaries or Material
Foreign Operating Subsidiaries shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in, any of
the acts set forth in clause (i), (ii), or (iii) above; or the Borrower
or any of its Domestic Operating Subsidiaries or Material Foreign
Operating Subsidiaries shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they become
due; or
(h) (i) any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Majority
Banks, likely to result in the termination of such Plan for purposes of
Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall or in the reasonable opinion of the Majority
Banks is likely to, incur any liability, in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
(i) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate for
the Borrower and their respective Subsidiaries, taken as a whole, a
liability (to the extent not paid or fully covered by insurance or
third-party indemnification from third parties which could reasonably
be expected to satisfy any indemnification claim) of $5,000,000 or
more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(j) A Change in Control shall occur;
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51
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Majority Banks, by notice to the Borrower,
declare the obligation of each Bank to make, Convert and/or Continue Advances to
be terminated, whereupon the same shall forthwith terminate, and (ii) shall at
the request, or may with the consent, of the Majority Banks, by notice to the
Borrower, declare the Advances and the Notes, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and payable, whereupon
the Advances and the Notes, all such interest and all such amounts shall become
and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of an actual or deemed entry of
an order for relief with respect to the Borrower under the United States Federal
Bankruptcy Code or any analogous statute or law in any jurisdiction outside of
the United States, (x) the obligation of each Bank to make, Convert and/or
Continue Advances shall automatically be terminated and (y) the Advances and the
Notes, all such interest and all such amounts shall automatically become and be
due and payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Bank hereby
appoints and authorizes the Administrative Agent to take such action as
administrative agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Notes), the Administrative Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Majority Banks,
and such instructions shall be binding upon all Banks and all holders of Notes;
provided, however, that the Administrative Agent shall not be required to take
any action which exposes the Administrative Agent to personal liability or which
is contrary to this Agreement or applicable law. The Administrative Agent agrees
to give to each Bank prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (a) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Bank which is the payee of such Note, as
assignor, and an assignee as provided in Section 8.07; (b) may consult with
legal counsel (including counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be
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52
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Bank and shall not be responsible to any Bank
for any statements, warranties or representations (whether written or oral) made
in or in connection with this Agreement; (d) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement on the part of the Borrower or to
inspect the Property (including the books and records) of the Borrower or any of
its Subsidiaries; (e) shall not be responsible to any Bank for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or any other instrument or document furnished pursuant hereto;
and (f) shall incur no liability under or in respect of this Agreement by acting
upon any notice, consent, certificate or other instrument or writing (which may
be by telecopier, telegram, cable or telex) believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Notes issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Bank and may
exercise the same as though it were not the Administrative Agent; and the term
"Bank" or "Banks" shall, unless otherwise expressly indicated, include Citibank
in its individual capacity. Citibank and its Affiliates may accept deposits
from, lend money to, act as trustee under indentures of, and generally engage in
any kind of business with, the Borrower, any of its Subsidiaries and any Person
who may do business with or own securities of the Borrower or any such
Subsidiary, all as if Citibank were not the Administrative Agent and without any
duty to account therefor to the Banks.
SECTION 7.04. Bank Credit Decision. Each Bank acknowledges
that it has, independently and without reliance upon the Administrative Agent or
any other Bank and based on the financial statements referred to in Section 4.01
and such other documents and information as it has deemed appropriate, made its
own credit analysis of the Borrower and decision to enter into this Agreement.
Each Bank also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. The Banks agree to indemnify
the Administrative Agent (to the extent not reimbursed by the Borrower but
without limiting the reimbursement obligations the Borrower hereunder), ratably
according to the respective principal amounts of the Notes held by them at the
time indemnification is sought hereunder (or if no Notes are at the time
outstanding, ratably according to the respective amounts of their Commitments at
such time), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Administrative Agent in any way relating to or arising out
of this Agreement or any action taken or omitted by the Administrative Agent
under this Agreement, provided, that no Bank shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Administrative
Agent's gross negligence or willful
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53
misconduct. Without limiting the foregoing, each Bank agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Administrative
Agent is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to
the Banks and the Borrower and may be removed at any time with or without cause
by the Majority Banks. Upon any such resignation or removal, the Majority Banks
shall have the right to appoint a successor Administrative Agent from among the
Banks that, unless a Default or Event of Default shall have occurred and then be
continuing, is reasonably acceptable to the Borrower. If no successor
Administrative Agent shall have been so appointed by the Majority Banks, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the Majority Banks'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Banks, appoint a successor Administrative Agent,
which shall be a Bank or a commercial bank organized under the laws of the
United States of America or of any State thereof and having a combined capital
and surplus of at least $100,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations under this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Article VII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement.
SECTION 7.07. Arranger. SSB shall not have any rights (except
to the extent expressly provided herein) or obligations hereunder in its
capacity as Arranger.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, ETC. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Majority Banks, or by the Administrative Agent with
the consent of the Majority Banks, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Banks, or by the Administrative Agent with the
consent of all the Banks do any of the following: (a) waive any of the
conditions specified in Section 3.01, (b) except as provided in Section 2.03(a),
increase the Commitments of such Banks or subject such Banks to
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54
any additional obligations, (c) reduce the principal of, or interest on, the
Advances or the Notes or any fees or other amounts payable hereunder, (d)
postpone any date fixed for any payment of principal of, or interest on, the
Advances or the Notes or any fees or other amounts payable hereunder, (e) change
the percentage of the Commitments or of the aggregate unpaid principal amount of
the Advances or the Notes, or the number of Banks, which shall be required for
the Banks or any of them to take any action hereunder, (f) amend this Section
8.01, or (g) amend Section 2.14; provided, further, that no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Banks required above to take such action, affect the rights or
duties of the Administrative Agent under this Agreement or any Note. This
Agreement and the Notes and the other documents referred to herein constitute
the entire agreement of the parties with respect to the subject matter hereof
and thereof.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic, telex or cable communication) and mailed, telecopied, telegraphed,
telexed, cabled or delivered, if to the Borrower, to it at the Borrower's
address at Young & Rubicam Inc, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇, telephone no. ▇▇▇-▇▇▇-▇▇▇▇, telecopier number
▇▇▇-▇▇▇-▇▇▇▇; if to any Bank, at the Domestic Lending Office specified beneath
its signature hereto; and if to the Administrative Agent, Citibank, N.A., ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, telephone no.
▇▇▇-▇▇▇-▇▇▇▇, telecopier no. ▇▇▇-▇▇▇-▇▇▇▇; or, as to the Borrower or the
Administrative Agent, at such other address as shall be designated by such party
in a written notice to the other parties and, as to each other party, at such
other address as shall be designated by such party in a written notice to the
Borrower and the Administrative Agent. All such notices and communications
shall, when mailed, telecopied, telegraphed, telexed or cabled, be effective
when deposited in the mails, telecopied, delivered to the telegraph company,
confirmed by telex answerback or delivered to the cable company, respectively,
except that notices and communications to the Administrative Agent pursuant to
Article II or VII shall not be effective until received by the Administrative
Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Bank or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder or under any Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs, Expenses and Indemnification.
(a) The Borrower agrees to pay and reimburse promptly after
demand all reasonable costs and expenses of the Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, the reasonable fees
and out-of-pocket expenses of counsel for the Administrative Agent with respect
thereto and with respect to advising the Administrative Agent as to its rights
and responsibilities under this
Credit Agreement
55
Agreement. The Borrower further jointly and severally agree to pay on demand all
costs and expenses, if any (including, without limitation, reasonable counsel
fees and expenses of the Administrative Agent and each of the Banks), incurred
by the Administrative Agent or any Bank in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this Section 8.04(a).
(b) The Borrower hereby indemnifies the Administrative Agent,
the Syndication Agent, SSB, each Bank and each of their respective Affiliates
and their respective officers, directors, employees, agents, advisors and
representatives (each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, fees and disbursements of counsel), joint or several, that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or relating to any investigation,
litigation or proceeding or the preparation of any defense with respect thereto
arising out of or in connection with or relating to this Agreement, the Notes or
the transactions contemplated hereby or thereby or any use made or proposed to
be made with the proceeds of the Advances, whether or not such investigation,
litigation or proceeding is brought by the Borrower, any of its shareholders or
creditors, an Indemnified Party or any other Person, or an Indemnified Party is
otherwise a party thereto, and whether or not any of the conditions precedent
set forth in Article III are satisfied or the other transactions contemplated by
this Agreement are consummated, except to the extent such claim, damage, loss,
liability or expense is found by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct,
or from a violation by such Indemnified Party of any law, order, regulation or
agreement to which such Indemnified Party or its properties is subject, or from
a breach of this Agreement.
The Borrower hereby further agrees that no Indemnified Party
shall have any liability (whether direct or indirect, in contract, tort or
otherwise) to the Borrower for or in connection with or relating to this
Agreement, the Notes or the transactions contemplated hereby or thereby or any
use made or proposed to be made with the proceeds of the Advances, except to the
extent such liability is found by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct,
nor any liability for consequential or punitive damages.
(c) If any payment of principal of, or Conversion of, any LIBO
Rate Advance is made other than on the last day of an Interest Period for such
Advance, as a result of acceleration of the maturity of the Advances and the
Notes pursuant to Section 6.01 or for any other reason whatsoever, the Borrower
of such Advance shall pay to the Administrative Agent for the account of each
Bank any amounts required to compensate such Bank for any additional losses,
costs or expenses which it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Bank to fund or
maintain such Advance. Subject to the next two sentences hereof, the Borrower
shall
Credit Agreement
56
pay amounts owing to such Bank pursuant to this Section 8.04(c) within 30 days
after receipt from such Bank of a certificate setting forth in reasonable detail
the calculation of the amount such Bank is entitled to claim under this Section
8.04(c) (which certificate shall be conclusive and binding on the Borrower,
absent manifest error). The Borrower shall not be liable under this clause for
the payment of any amounts incurred or accrued more than 180 days prior to the
date on which notice of the event or circumstance giving rise to the obligation
to make such payment is given to the Borrower hereunder, except to the extent
such amounts were incurred or accrued prior to such date due solely to the
retroactive nature of the relevant requirement. If the Borrower objects in good
faith to any payment demanded under this clause on or before the date such
payment is due, then the Borrower and the Bank demanding such payment shall
enter into discussions to review the amount due, and the Borrower's obligation
to pay such amount to such Bank shall be deferred for 45 days after the original
demand for payment, and if the Borrower and such Bank do not reach agreements
during such 45-day period on the amount due, the Borrower shall pay to such Bank
at the end of such 45-day period the amount certified by such Bank to be due.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default under Section 6.01(a) or (b) or
(b) the making of the request or the granting of the consent specified by
Section 6.01 to authorize the Administrative Agent to declare the Notes due and
payable pursuant to the provisions of Section 6.01, each Bank and each of its
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Bank or such Affiliate to or for
the credit or the account of the Borrower (all such deposits and other
indebtedness being herein called "Obligations") against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
any Note held by such Bank, whether or not such Bank shall have made any demand
under this Agreement or such Note and although the Obligations may be unmatured.
Each Bank agrees promptly to notify the Borrower after any such set-off and
application made by such Bank or such Affiliate, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of each Bank and its Affiliate under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) which such Bank or such Affiliate may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the
Administrative Agent and when the Administrative Agent shall have been notified
by each Bank that such Bank has executed it and thereafter shall be binding upon
and inure to the benefit of the Borrower, the Administrative Agent and each Bank
and their respective successors and assigns, except that no Borrower shall have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Banks.
Credit Agreement
57
SECTION 8.07. Assignments and Participations.
(a) Each Bank may, with notice to and the consent of the
Administrative Agent and (unless at the time an Event of Default has occurred
and is continuing) the Borrower, such consents not to be unreasonably withheld
(but not otherwise), assign to another bank, financial institution or other
entity (other than the Borrower or any Affiliate of the Borrower), all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and the
Note or Notes held by it); provided, however, that (i) no such consent by the
Borrower or the Administrative Agent shall be required in the case of any
assignment to a Subsidiary of the assigning Bank or to another Bank, (ii) each
such assignment shall be of a constant, and not a varying, percentage of all
rights and obligations of the assigning Bank under this Agreement, (iii) except
in the case of an assignment of the entire remaining portion of an assigning
Bank's rights and obligations under this Agreement, the amount of the Commitment
of the assigning Bank being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $10,000,000 and shall be an integral
multiple of $1,000,000, (iv) the parties to each such assignment shall execute
and deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note or Notes subject
to such assignment, and (v) the parties to each such assignment (other than the
Borrower) shall deliver to the Administrative Agent a processing and recordation
fee of $3,000. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Bank hereunder and (y) the Bank
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Bank's rights and obligations under this Agreement, such Bank
shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Bank assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and
Credit Agreement
58
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such assigning
Bank or any other Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee appoints and
authorizes the Administrative Agent to take such action as administrative agent
on its behalf and to exercise such powers under this Agreement as are delegated
to the Administrative Agent by the terms hereof, together with such powers as
are reasonably incidental thereto; and (vi) such assignee agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Bank.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Bank and an assignee, together with any Note or Notes subject to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed (and the Borrower and the Administrative Agent
shall have consented to the relevant assignment to the extent required pursuant
to Section 8.07(a)) and is in substantially the form of Exhibit E hereto, (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrower.
Within five Business Days after its receipt of such notice, the Borrower, at its
own expense, shall execute and deliver to the Administrative Agent, in exchange
for the surrendered Note or Notes, a Note to the order of such assignee in an
amount equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new
Note to the order of the assigning Bank in an amount equal to the Commitment
retained by it hereunder. Such new Note(s) shall be in an aggregate principal
amount equal to the aggregate principal amount of such surrendered Notes. All
such Notes shall be dated the effective date of such Assignment and Acceptance
and shall otherwise be in substantially the form of Exhibit A hereto.
(d) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of each of the Banks and, with respect to Banks, the Commitment of,
and principal amount of the Advances owing to, each such Bank from time to time
(the "Register"). The entries in the Register shall be conclusive and binding
for the purposes, absent manifest error, and the Borrower, the Administrative
Agent and the Banks may treat each Person whose name is recorded in the Register
as a Bank hereunder for the purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Bank at any reasonable time and
from time to time upon reasonable prior notice.
(e) Each Bank may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) such Bank's obligations under this Agreement
(including, without limitation, its Commitment hereunder) shall remain
unchanged, (ii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Bank shall remain the
holder of any such Note for all purposes of this Agreement, (iv) the
Credit Agreement
59
Borrower, the Administrative Agent and the other Banks shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement, and (v) no participant under any such
participation agreement shall have any right to approve any amendment or waiver
of any provision of this Agreement or any Note, or to consent to any departure
by the Borrower therefrom, except to the extent that any such amendment, waiver
or consent would (x) reduce the principal of, or interest on, the Notes or any
fee or other amounts payable hereunder, in each case to the extent the same are
subject to such participation, or (y) postpone any date fixed for the payment of
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent the same are subject to such
participation.
(f) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower or any of its Subsidiaries
furnished to such Bank by or on behalf of the Borrower; provided, that, prior to
any such disclosure, the assignee or participant or proposed assignee or
participant shall agree to preserve the confidentiality of any confidential
information relating to the Borrower or any such Subsidiary received by it from
such Bank on the terms set forth in Section 8.13.
(g) Notwithstanding any other provision set forth in this
Agreement, any Bank may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
(h) All amounts payable by the Borrower to any Bank under
Sections 2.06, 2.10, 2.13 and 8.04(c) in respect of Advances held by such Bank,
and such Bank's Commitment, shall be determined as if such Bank had not sold or
agreed to sell any participations in such Advances or Commitment and as if such
Bank were funding each of such Advances and Commitments in the same way that it
is funding the portion of such Advances and Commitment in which no
participations have been sold. No assignee or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 2.10 than
such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made (i) with the Borrower's prior written
consent, (ii) by reason of the provisions of said Section 2.10 requiring such
Bank to designate a different Applicable Lending Office as provided in said
Section 2.10 or (iii) at a time when the circumstances giving rise to such
greater payment did not exist.
SECTION 8.08. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the law of the State of
New York.
SECTION 8.09. Severability. In case any provision in this
Agreement or in any Note shall be held to be invalid, illegal or unenforceable,
such provision shall be severable from the rest of this Agreement or such Note,
as the case may be, and the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Credit Agreement
60
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 8.11. Survival. The obligations of the Borrower under
Sections 2.06, 2.10, 2.13 and 8.04, and the obligations of the Banks under
Section 7.05, shall survive the repayment of the Advances and the termination of
the Commitments. In addition, each representation and warranty made, or deemed
to be made by or in connection with any Notice of Borrowing, herein or pursuant
hereto shall survive the making of such representation and warranty as of the
date made, and no Bank shall be deemed to have waived, by reason of making any
Advance, any Default or Event of Default that may arise by reason of such
representation or warranty proving to have been false or misleading,
notwithstanding that such Bank or the Administrative Agent may have had notice
or knowledge or reason to believe that such representation or warranty was false
or misleading at the time such extension of credit was made.
SECTION 8.12. Waiver of Jury Trial. EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 8.13. Confidentiality. Each Bank agrees to hold all
non-public information obtained pursuant to the provisions of this Agreement in
accordance with its customary procedure for handling confidential information of
this nature and in accordance with safe and sound banking practices, provided,
that nothing herein shall prevent any Bank from disclosing such information (a)
to any other Bank or to the Administrative Agent (or to SSB), (b) upon the order
of any court or administrative agency or otherwise to the extent required by
statute, rule, regulation or judicial process, (c) to bank examiners or upon the
request or demand of any other regulatory agency or authority, (d) which had
been publicly disclosed other than as a result of a disclosure by the
Administrative Agent or any Bank prohibited by this Agreement, (e) in connection
with any litigation to which any one or more of the Banks or the Administrative
Agent is a party, or in connection with the exercise of any remedy hereunder or
under any Note, (f) to such Bank's or Administrative Agent's legal counsel and
independent auditors and accountants and (g) subject to provisions substantially
similar to those contained in this Section, to any actual or proposed
participant or assignee.
Credit Agreement
61
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
YOUNG & RUBICAM INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------
Title: V.P. Assistant Treasurer
ADMINISTRATIVE AGENT
CITIBANK, N.A., as Administrative
Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title: Vice President
Credit Agreement
62
Commitment
$25,000,000 CITIBANK, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
---------------------
Title: Vice President
Domestic Lending Office:
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
LIBO Lending Office:
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ NATIONAL TRUST
$21,000,000 AND SAVINGS ASSOCIATION
By: /s/ [Signature Indecipherable]
-------------------------------
Title: Vice President
Domestic Lending Office:
Bank of America National Trust
and Savings Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LIBO Lending Office:
Bank of America National Trust
and Savings Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices (other than Notices of
Borrowings, Continuations or Conversions):
Bank of America National Trust
and Savings Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 212-503-7173
Address for Notices of Borrowings,
Continuations or Conversions):
Bank of America National Trust
and Savings Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
64
Commitment THE BANK OF NEW YORK
$17,000,000
By: /s/ Georgia Pan-Kita
-------------------------
Title: Vice President
Domestic Lending Office:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LIBO Lending Office:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ Corporate Division
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Georgia Pan-Kita
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
$21,000,000
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Title: Senior Relationship Manager
Domestic Lending Office:
The Bank of Nova Scotia, New York Agency
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Pier ▇▇▇▇▇▇▇▇▇
▇▇▇▇ Lending Office:
The Bank of Nova Scotia, New York Agency
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Pier ▇▇▇▇▇▇▇▇▇
Address for Notices:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
66
Commitment CREDIT AGRICOLE INDOSUEZ
$17,000,000
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: FVP
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: VP, Sr. Rel. Mgr.
Domestic Lending Office:
Credit Agricole Indosuez
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LIBO Lending Office:
Credit Agricole Indosuez
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Credit Matters:
Credit Agricole Indosuez
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Address for Funding Notices:
Credit Agricole Indosuez
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
67
Commitment THE FIRST NATIONAL BANK OF CHICAGO
$17,000,000
By: /s/ [Signature Indecipherable]
------------------------------
Title: VP
Domestic Lending Office:
The First National Bank of Chicago
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LIBO Lending Office:
The First National Bank of Chicago
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The First National Bank of Chicago
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
68
Commitment FLEET BANK, N.A.
$17,000,000
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------
Title: Vice President
Domestic Lending Office:
Fleet Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LIBO Lending Office:
Fleet Bank, N.A.
1185 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Fleet Bank, N.A.
1185 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
69
Commitment WACHOVIA BANK, N.A.
$17,000,000
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Senior Vice President
Domestic Lending Office:
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
LIBO Lending Office:
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Credit Notices:
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Address for Administrative and Funding Notices
and Notices Relating to Repayment:
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Peaches ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
70
Commitment BANK OF TOKYO-MITSUBISHI TRUST
$12,000,000 COMPANY
By: /s/ ▇. ▇▇▇▇▇▇
-----------------------------
Title: Vice President
Domestic Lending Office:
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
LIBO Lending Office:
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Address for Credit Notices:
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇/5636
Credit Agreement
71
Commitment CREDIT LYONNAIS NEW YORK BRANCH
$12,000,000
By: /s/ D.E. Bradley
--------------------------
Title: First Vice President
Domestic Lending Office:
Credit Lyonnais New York Branch
1301 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LIBO Lending Office:
Credit Lyonnais New York Branch
1301 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Credit Notices:
Credit Lyonnais New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
72
Commitment ING BANK N.V.
$12,000,000
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Title: Country Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------
Title: Assistant Director
Domestic Lending Office:
ING Bank N.V.
▇▇, ▇▇. ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
LIBO Lending Office:
ING Bank N.V.
▇▇, ▇▇. ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
Address for Notices:
ING Bank N.V.
▇▇, ▇▇. ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇-▇▇▇-▇▇▇▇
Facsimile: 353-1-638-4050
Credit Agreement
73
Commitment NATIONAL WESTMINSTER BANK PLC
$12,000,000
Nassau Branch
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Title: Director, North America
New York Branch
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Title: Corporate Manager
Major Corporate Group
Domestic Lending Office:
National Westminster Bank PLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LIBO Lending Office:
National Westminster Bank PLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
National Westminster Bank PLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ Wearing
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
74
SCHEDULE I
ERISA Matters
None
Schedule I
SCHEDULE II
Existing Liens
None
Schedule II
EXHIBIT A
FORM OF NOTE
$_________________ Dated: _________ __, _____
FOR VALUE RECEIVED, the undersigned, YOUNG & RUBICAM INC., a
corporation organized under the laws of Delaware (the "Borrower"), HEREBY
PROMISES TO PAY to the order of _________________ (the "Bank") for the account
of its Applicable Lending Office (as defined in the Credit Agreement referred to
below) on the Termination Date (as so defined) the principal sum of $[amount of
the Bank's Commitment in figures] or, if less the aggregate principal amount of
the Advances (as defined below) made by the Bank to the Borrower pursuant to the
Credit Agreement then outstanding.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest on each Advance are payable to the
Administrative Agent's Account (as defined in the Credit Agreement referred to
below), in same day funds. Each Advance made by the Bank to the Borrower
pursuant to the Credit Agreement, and all payments made on account of principal
thereof, shall be recorded by the Bank and, prior to any transfer hereof,
endorsed on the grid attached hereto which is part of this Note; provided that
the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Credit Agreement.
This Note is one of the Notes referred to in, and is entitled
to the benefits of, the Credit Agreement dated as of June 30, 1999 (the "Credit
Agreement") among Young & Rubicam Inc., the Bank and certain other banks party
thereto, and Citibank, N.A., as Administrative Agent for the Bank and such other
banks. The Credit Agreement, among other things, (i) provides for the making of
advances (the "Advances") by the Bank to the Borrower from time to time in an
aggregate amount not to exceed at any time outstanding the Dollar amount first
above mentioned, the indebtedness of the Borrower resulting from each such
Advance being evidenced by this Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York, United States.
Form of Note
YOUNG & RUBICAM INC.
By__________________________
Title:
Form of Note
2
-------------- ---------------------- ---------------------- ----------------------- ----------------------
Amount of
Amount of Principal Paid or Unpaid Principal Notation
Date Advance Prepaid Balance Made By
-------------- ---------------------- ---------------------- ----------------------- ----------------------
-------------- ---------------------- ---------------------- ----------------------- ----------------------
-------------- ---------------------- ---------------------- ----------------------- ----------------------
-------------- ---------------------- ---------------------- ----------------------- ----------------------
-------------- ---------------------- ---------------------- ----------------------- ----------------------
-------------- ---------------------- ---------------------- ----------------------- ----------------------
-------------- ---------------------- ---------------------- ----------------------- ----------------------
-------------- ---------------------- ---------------------- ----------------------- ----------------------
-------------- ---------------------- ---------------------- ----------------------- ----------------------
-------------- ---------------------- ---------------------- ----------------------- ----------------------
-------------- ---------------------- ---------------------- ----------------------- ----------------------
Form of Note
3
EXHIBIT B
NOTICE OF BORROWING
Citibank, N.A., as Administrative
Agent for the Banks parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ___________
[Date]
Ladies and Gentlemen:
The undersigned, Young & Rubicam Inc., refers to the Credit
Agreement dated as of June 30, 1999 (the "Credit Agreement", the terms defined
therein being used herein as therein defined), among the undersigned, certain
Banks party thereto and Citibank, N.A., as Administrative Agent for said Banks,
and hereby gives you notice, irrevocably, pursuant to Section 2.01(d) of the
Credit Agreement that the undersigned hereby requests a Borrowing under the
Credit Agreement, and in that connection sets forth below the information
relating to such Borrowing (the "Proposed Borrowing") as required by Section
2.01(d) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ___________
__, _____.
(ii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [LIBO Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
___________.
[(iv) The initial Interest Period for each Advance made as
part of the Proposed Borrowing is ______ month[s]]1.
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in Section
4.01 [(not including the representation and warranty set forth in
Section 4.01(b))]2 are true and correct in all
_____________________________
1 For LIBO Rate Advances only.
Form of Notice of Borrowing
material respects, before and after giving effect to the Proposed
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date (except to the extent such representations
and warranties expressly relate to an earlier date); and
(B) no Default has occurred and is continuing, or would result
from the Proposed Borrowing or from the application of the proceeds
therefrom.
Very truly yours,
YOUNG & RUBICAM INC.
By___________________________
Title:
_____________________________________
.... (continued)
2 Exclude bracketed text if the Proposed Borrowing is the initial Borrowing
under the Credit Agreement.
Form of Notice of Borrowing
EXHIBIT C
[Form of Opinion of General Counsel to the Borrower]
________, 1999
To the Banks party to the
Credit Agreement referred to
below
Citibank, N.A., as Administrative
Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Credit Agreement dated as of June 30, 1999 (the "Credit Agreement")
among Young & Rubicam Inc. (the "Borrower"), the Banks party thereto
and Citibank, N.A., as Administrative Agent
Ladies and Gentlemen:
I am the general counsel of the Borrower and have acted as
counsel to the Borrower in connection with the preparation, execution and
delivery of the following documents:
(a) the Credit Agreement; and
(b) the Notes delivered to the Banks on the date hereof;
The documents described in the foregoing clauses (a) and (b) are collectively
referred to herein as the "Credit Documents". Unless otherwise indicated,
capitalized terms used but not defined herein shall have the respective meanings
set forth in the Credit Agreement. This opinion is furnished to you pursuant to
subsection 3.01(c) of the Credit Agreement.
In connection with this opinion, I have examined:
(A) the Credit Documents; and
(B) forms of the Notes to be delivered after the date hereof.
I also have examined the originals, or certified, conformed or reproduction
copies, of such records, agreements, instruments and other documents and have
made such other investigations as I have deemed relevant and necessary in
connection with the opinions expressed herein. As to questions of fact material
to this opinion, I have relied upon certificates as to matters of fact of public
officials and of officers and representatives of the Borrower. In addition, I
have
Form of Opinion of General Counsel to the Borrower
examined, and have relied as to matters of fact, upon the representations
made in the Credit Documents.
In rendering the opinions set forth below, I have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to me as originals, the conformity to
original documents of all documents submitted to me as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
Based upon and subject to the foregoing, and subject to the
qualifications and limitations set forth herein, I am of the opinion that:
1. The Borrower (a) has been duly organized and is validly
existing and in good standing under the laws of the State of Delaware, (b) has
the power and authority to execute, deliver and perform each of the Credit
Documents to which it is a party and has taken all necessary action to authorize
the borrowings on the terms and conditions of the Credit Agreement and the
Notes, and (c) has duly executed and delivered the Credit Agreement and the
Notes.
2. Each Credit Document constitutes and each of the Notes
delivered after the date hereof, assuming the due authorization, execution and
delivery by the Borrower, will constitute the valid and legally binding
obligation of the Borrower, enforceable against the Borrower in accordance with
its terms.
3. The execution, delivery and performance of the Credit
Documents, the borrowings under the Credit Agreement and the use of proceeds
thereof will not violate any Requirement of Law or Contractual Obligation of the
Borrower and will not result in, or require, the creation or imposition of any
Lien on any of its properties or revenues pursuant to any such Requirement of
Law or Contractual Obligation.
4. No consent or authorization of, filing with, notice to, or
other act by or in respect of, any Governmental Authority or any other Person is
required by the Borrower in connection with the borrowings under the Credit
Agreement or with the execution, delivery, performance, validity or
enforceability of the Credit Documents.
5. To my knowledge, there is no litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or
threatened by or against the Borrower or against any of its Properties (a) with
respect to any Credit Document or any of the transactions contemplated thereby
or (b) which could reasonably be expected to have a Material Adverse Effect.
6. The Borrower is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of and subject to
regulation under the Investment Company Act of 1940, as amended.
7. The execution, delivery and performance by the Borrower of
the Credit Documents and the making of the Advances under the Credit Agreement
(assuming the proceeds
Form of Opinion of General Counsel to the Borrower
2
of the Advances are used in the manner provided in the Credit Agreement) will
not violate Regulation T, U or X of the Board of Governors of the Federal
Reserve System.
The opinions expressed herein are subject to the following
qualifications and comments:
(a) In connection with my opinion expressed in paragraph 1
above, I have relied upon certificates of public officials as to
good standing.
(b) Each of the Credit Documents is subject to the effect of
(i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights of creditors
generally and (ii) the application of general principles of
equity (regardless of whether enforcement is considered in
proceedings at law or in equity).
(c) Insofar as certain provisions of the Credit Agreement
may provide for indemnification with respect to violations of
Federal or state securities law, the enforceability thereof may
be limited by public policy considerations.
(d) The provisions of the Credit Agreement that permit
Administrative Agent or any of the Banks to take action or make
determinations, or to benefit from indemnities and similar
undertakings of any party to the Credit Documents, may be subject
to a requirement that such action be taken or such determinations
be made, and any action or inaction by Administrative Agent or
any of the Banks that may give rise to a request for payment
under such an undertaking be taken or not taken, on a reasonable
basis and in good faith.
(e) I express no opinion as to (i) whether a Federal or
state court outside of the State of New York would give effect to
the choice of New York law provided for in the Credit Agreement,
or (ii) the waiver of jury trial found in Section 8.12 of the
Credit Agreement.
(f) To the extent that the obligations of the Borrower may
be dependent upon such matters, I have assumed for purposes of
this opinion that each party other than the Borrower (each, an
"Other Party" and collectively, the "Other Parties") to the
agreements and contracts referred to herein is duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation; that each Other Party has the
requisite corporate or other organizational power and authority
to perform its obligations under such agreements and contracts,
as applicable; and that such agreements and contracts have been
duly authorized, executed and delivered by each Other Party. I
have also assumed that each such agreement and contract
constitutes the legally valid and binding obligation of all of
the Other Parties party thereto, enforceable against Other
Parties in accordance with its respective terms. Except as
expressly covered in this opinion, I am not expressing any
opinion as to the effect of compliance by any Bank with any state
or Federal laws or regulations applicable to the transactions
because of the nature of any of its businesses.
Form of Opinion of General Counsel to the Borrower
3
(g) My opinions in paragraphs 3 and 4 above as to compliance
with certain statutes, rules and regulations are based upon a
review of those statutes, rules and regulations which, in my
experience, are normally applicable to borrowers engaged in
transactions of the type contemplated by the Credit Documents and
statutes, rules and regulations applicable to corporations
conducting businesses similar to those conducted by the Borrower.
I am a member of the Bar of the State of New York, and do not
express any opinion herein concerning any law other than the law of the State of
New York, the Federal law of the United States, and the Delaware General
Corporation Law.
This opinion letter is rendered to you and your permitted assignees
in connection with the above described transactions. This opinion letter may not
be relied upon by you for any other purpose, or relied upon by any other person,
firm or corporation without my prior written consent.
Very truly yours,
Form of Opinion of General Counsel to the Borrower
4
EXHIBIT D
[Form of Opinion of Special New York Counsel
to the Administrative Agent]
___________, 1999
To the Banks party to the
Credit Agreement referred to
below
Citibank, N.A., as Administrative
Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as special New York counsel to Citibank, N.A.,
as Administrative Agent, in connection with the Credit Agreement dated as of
June 30, 1999 (the "Credit Agreement") among Young & Rubicam Inc. (the
"Borrower"), the Banks party thereto and Citibank, N.A., as Administrative
Agent, providing for loans to be made by said Banks to the Borrower in an
aggregate principal amount at any one time outstanding not exceeding
$200,000,000. Terms defined in the Credit Agreement are used herein as defined
therein. This opinion is being delivered pursuant to Section 3.01(d) of the
Credit Agreement.
In rendering the opinions expressed below, we have assumed,
with respect to all of the documents referred to in this opinion letter, that:
(i) such documents have been duly authorized by, have been
duly executed and delivered by, and (except to the
extent set forth in the opinions below as to the
Borrower) constitute legal, valid, binding and
enforceable obligations of, all of the parties to such
documents;
(ii) all signatories to such documents have been duly
authorized;
(iii)all of the parties to such documents are duly
organized and validly existing and have the power and
authority (corporate or other) to execute, deliver and
perform such documents; and
Form of Opinion of Special New York
Counsel to the Administrative Agent
(iv) all and other governmental consents and approvals
required in connection with the execution, delivery,
performance, validity or enforceability of the Credit
Agreement and the Notes have been made or obtained and
are in full force and effect.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that the Credit Agreement constitutes,
and the Notes when duly executed and delivered for value will constitute, legal,
valid and binding obligation of the Borrower, enforceable against the Borrower
in accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or transfer or
other similar laws relating to or affecting the rights of creditors generally
and except as the enforceability thereof is subject to the application of
general principles of equity (regardless of whether considered in a proceeding
in equity or at law), including, without limitation, (a) the possible
unavailability of specific performance, injunctive relief or any other equitable
remedy and (b) concepts of materiality, reasonableness, good faith and fair
dealing.
The foregoing opinions are subject to the following comments
and qualifications:
(A) The enforceability of Section 8.04(b) of the Credit
Agreement may be limited by laws limiting the enforceability of
provisions exculpating or exempting a party from, or requiring
indemnification of a party for, its own action or inaction, to the
extent such action or inaction involves gross negligence, recklessness
or willful or unlawful conduct.
(B) The enforceability of provisions in the Credit Agreement
to the effect that terms may not be waived or modified except in
writing may be limited under certain circumstances.
(C) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which any Bank is located (other than the State of
New York) that limit the interest, fees or other charges such Bank may
impose, (ii) the second sentence of Section 2.15 of the Credit
Agreement, or (iii) Section 8.09 of the Credit Agreement.
The foregoing opinions are limited to matters involving the Federal
laws of the United States and the law of the State of New York, and we do not
express any opinion as to the laws of any other jurisdiction.
This opinion letter is, pursuant to Section 3.01 of the Credit
Agreement, provided to you by us in our capacity as special New York counsel to
the Administrative Agent and may not be relied upon by any Person for any
purpose other than in connection with the transactions contemplated by the
Credit Agreement without, in each instance, our prior written consent.
Very truly yours,
Form of Opinion of Special New York
Counsel to the Administrative Agent
3
EXHIBIT E
ASSIGNMENT AND ACCEPTANCE
Dated ____________ __, _____
Reference is made to the Credit Agreement dated as of June 30,
1999 (the "Credit Agreement") among Young & Rubicam Inc., a New York corporation
(the "Borrower"), the Banks (as defined in the Credit Agreement) and Citibank,
N.A., as Administrative Agent for the Banks (the "Administrative Agent"). Terms
defined in the Credit Agreement are used herein with the same meaning.
_____________ (the "Assignor") and _____________ (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, that interest in
and to all of the Assignor's rights and obligations under the Credit Agreement
as of the date hereof which represents the percentage interest specified on
Schedule 1 of all outstanding rights and obligations under the Credit Agreement,
including, without limitation, such interest in the Assignor's Commitment and
the Advances owing to the Assignor, and the Notes held by the Assignor. After
giving effect to such sale and assignment, the Assignee's Commitment and the
amount of the Advances owing to the Assignee will be as set forth in Section 2
of Schedule 1.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto; and (iv) attaches the Notes referred to in
paragraph 1 above and requests that the Administrative Agent exchange such Notes
for a new Note to the order of the Assignee in an amount equal to the Commitment
assumed by it pursuant hereto and a new Note to the order of the Assignor in an
amount equal to the Commitment retained by it under the Credit Agreement, in
each case specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and
Form of Assignment and Acceptance
decision to enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Administrative Agent, the Assignor
or any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) appoints and authorizes the
Administrative Agent to take such action as administrative agent on its behalf
and to exercise such powers under the Credit Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (iv) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Bank; and (v) specifies as its
Domestic Lending Office (and address for notices) and Eurodollar Lending Office
the offices set forth beneath its name on the signature pages hereof.
4. Following the execution of this Assignment and Acceptance
by the Assignor and the Assignee and the consent of the Borrower (to the extent
required pursuant to Section 8.07 of the Credit Agreement), it will be delivered
to the Administrative Agent for acceptance and recording by the Administrative
Agent. The effective date of this Assignment and Acceptance shall be the date of
acceptance thereof by the Administrative Agent, unless otherwise specified on
Schedule 1 hereto (the "Closing Date").
5. Upon such acceptance and recording by the Administrative
Agent, as of the Closing Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Bank thereunder and (ii) the Assignor shall, to
the extent provided in this Assignment and Acceptance, relinquish its rights and
be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Closing Date, the Administrative Agent shall make all
payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the Credit
Agreement and the Notes for periods prior to the Closing Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective officers thereunto
duly authorized, as of the date first above written, such execution being made
on Schedule 1 hereto.
Form of Assignment and Acceptance
2
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
Percentage assigned to Assignee _______________%
Assignee's Commitment $______________
Aggregate outstanding principal
amount of Advances assigned $______________
Principal Amount of Note payable to Assignee $______________
Principal Amount of Note payable to Assignor $______________
Closing Date (if other than
date of acceptance by
Administrative Agent)* __________ __, _____
[NAME OF ASSIGNOR], as Assignor
By______________________________
Title:
[NAME OF ASSIGNEE], as Assignee
By______________________________
Title:
Domestic Lending Office:
Eurodollar Lending Office:
* This date should be no earlier than the date of acceptance by the
Administrative Agent.
Form of Assignment and Acceptance
Accepted this ____ day
of _______, _____
CITIBANK, N.A., as
Administrative Agent
By_____________________
Title:
CONSENTED TO:
YOUNG & RUBICAM INC.
By_____________________
Title:
Form of Assignment and Acceptance