EXECUTION COPY
U.S. $500,000,000
364-DAY CREDIT AGREEMENT
Dated as of May 15, 2003
Among
THE INTERPUBLIC GROUP OF COMPANIES, INC.
AS COMPANY
THE INITIAL LENDERS NAMED HEREIN
AS INITIAL LENDERS
CITIBANK, N.A.
AS ADMINISTRATIVE AGENT
JPMORGAN CHASE BANK
AS SYNDICATION AGENT
UBS WARBURG LLC
and
HSBC BANK USA
AS CO-DOCUMENTATION AGENTS
and
CITIGROUP GLOBAL MARKETS INC.
AS LEAD ARRANGER AND BOOK MANAGER
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1
SECTION 1.01. CERTAIN DEFINED TERMS 1
SECTION 1.02. COMPUTATION OF TIME PERIODS 14
SECTION 1.03. ACCOUNTING TERMS 14
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT 14
SECTION 2.01. THE ADVANCES AND LETTERS OF CREDIT 14
SECTION 2.02. MAKING THE ADVANCES 14
SECTION 2.03. ISSUANCE OF AND DRAWINGS AND REIMBURSEMENT UNDER LETTERS OF CREDIT 16
SECTION 2.04. FEES 17
SECTION 2.05. TERMINATION OR REDUCTION OF THE COMMITMENTS 18
SECTION 2.06. REPAYMENT OF ADVANCES 18
SECTION 2.07. INTEREST ON ADVANCES 19
SECTION 2.08. INTEREST RATE DETERMINATION 20
SECTION 2.09. OPTIONAL CONVERSION OF ADVANCES 21
SECTION 2.10. PREPAYMENTS OF ADVANCES 21
SECTION 2.11. INCREASED COSTS 22
SECTION 2.12. ILLEGALITY 23
SECTION 2.13. PAYMENTS AND COMPUTATIONS 23
SECTION 2.14. TAXES 24
SECTION 2.15. SHARING OF PAYMENTS, ETC. 26
SECTION 2.16. EVIDENCE OF DEBT 26
i
SECTION 2.17. USE OF PROCEEDS 27
SECTION 2.18. EXTENSION OF TERMINATION DATE 27
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING 29
SECTION 3.01. Conditions Precedent to Effectiveness of SECTIONS 2.01 AND 2.03 29
SECTION 3.02. INITIAL ADVANCE TO EACH DESIGNATED SUBSIDIARY 30
SECTION 3.03. CONDITIONS PRECEDENT TO EACH BORROWING, EXTENSION DATE, TERM LOAN ELECTION AND ISSUANCE 31
SECTION 3.04. DETERMINATIONS UNDER SECTION 3.01 AND 3.02 31
ARTICLE IV REPRESENTATIONS AND WARRANTIES 31
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE COMPANY 31
ARTICLE V COVENANTS OF THE COMPANY 33
SECTION 5.01. AFFIRMATIVE COVENANTS 33
SECTION 5.02. NEGATIVE COVENANTS 36
SECTION 5.03. FINANCIAL COVENANTS 40
ARTICLE VI EVENTS OF DEFAULT 41
SECTION 6.01. EVENTS OF DEFAULT 41
SECTION 6.02. ACTIONS IN RESPECT OF THE LETTERS OF CREDIT UPON DEFAULT 43
ARTICLE VII GUARANTY 44
SECTION 7.01. GUARANTY 44
SECTION 7.02. GUARANTY ABSOLUTE 44
SECTION 7.03. WAIVERS AND ACKNOWLEDGMENTS 45
SECTION 7.04. SUBROGATION 46
SECTION 7.05. CONTINUING GUARANTY; ASSIGNMENTS 46
ii
ARTICLE VIII THE AGENT 47
SECTION 8.01. AUTHORIZATION AND ACTION 47
SECTION 8.02. AGENT'S RELIANCE, ETC. 47
SECTION 8.03. CITIBANK AND AFFILIATES 47
SECTION 8.04. LENDER CREDIT DECISION 47
SECTION 8.05. INDEMNIFICATION 48
SECTION 8.06. SUCCESSOR AGENT 49
SECTION 8.07. SUB-AGENT 49
SECTION 8.08. OTHER AGENTS. 49
ARTICLE IX MISCELLANEOUS 49
SECTION 9.01. AMENDMENTS, ETC. 49
SECTION 9.02. NOTICES, ETC. 49
SECTION 9.03. NO WAIVER; REMEDIES 50
SECTION 9.04. COSTS AND EXPENSES 51
SECTION 9.05. RIGHT OF SET-OFF 51
SECTION 9.06. BINDING EFFECT 51
SECTION 9.07. ASSIGNMENTS AND PARTICIPATIONS 51
SECTION 9.08. CONFIDENTIALITY 54
SECTION 9.09. DESIGNATED SUBSIDIARIES 55
SECTION 9.10. GOVERNING LAW 55
SECTION 9.11. EXECUTION IN COUNTERPARTS 55
SECTION 9.12. JUDGMENT 55
SECTION 9.13. JURISDICTION, ETC. 55
iii
SECTION 9.14. SUBSTITUTION OF CURRENCY 56
SECTION 9.15. NO LIABILITY OF THE ISSUING BANKS 56
SECTION 9.16. WAIVER OF JURY TRIAL 56
SCHEDULES
Schedule I - List of Applicable Lending Offices
Schedule 2.01(b) - Existing Letters of Credit
Schedule 5.02(f) - Acquisitions
Schedule 5.02(i) - Subsidiary Debt
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Company
Exhibit E - Form of Designation Agreement
Exhibit F - Form of Subsidiary Guaranty
Exhibit G - Form of Opinion of Counsel for the Subsidiary Guarantor
iv
364-DAY CREDIT AGREEMENT
Dated as of May 15, 2003
THE INTERPUBLIC GROUP OF COMPANIES, INC., a Delaware corporation
(the "COMPANY"), the banks, financial institutions and other institutional
lenders (the "INITIAL LENDERS") and initial issuing banks (the "INITIAL ISSUING
BANKS") listed on the signature pages hereof, JPMORGAN CHASE BANK, as
Syndication Agent, UBS WARBURG LLC and HSBC BANK USA, as co-documentation
agents, CITIGROUP GLOBAL MARKETS INC., as lead arranger and book manager, and
CITIBANK, N.A. ("CITIBANK"), as administrative agent (the "AGENT") for the
Lenders (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"ADVANCE" means an advance by a Lender to any Borrower as part of
a Borrowing and refers to a Base Rate Advance or a Eurocurrency Rate Advance
(each of which shall be a "TYPE" of Advance).
"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 or is a director or officer of 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 power to vote 10% or more of the Voting
Stock of such Person or to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Stock, by
contract or otherwise.
"AGENT'S ACCOUNT" means (a) in the case of Advances denominated in
Dollars, the account of the Agent maintained by the Agent at Citibank at its
office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇,
Attention: Bank Loan Syndications, (b) in the case of Advances denominated in
any Committed Currency, the account of the Sub-Agent designated in writing from
time to time by the Agent to the Company and the Lenders for such purpose and
(c) in any such case, such other account of the Agent as is designated in
writing from time to time by the Agent to the Company and the Lenders for such
purpose.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurocurrency Lending Office in the case of a Eurocurrency Rate
Advance.
"APPLICABLE MARGIN" means, as of any date prior to the Term Loan
Conversion Date, a percentage per annum determined by reference to the Public
Debt Rating in effect on such date as set forth below:
--------------------------- ---------------------------- --------------------------------
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/▇▇▇▇▇'▇ Base Rate Advances Eurocurrency Rate Advances
--------------------------- ---------------------------- --------------------------------
1
LEVEL 1
BBB+ or Baa1 or above 0.000% 0.625%
--------------------------- ---------------------------- --------------------------------
LEVEL 2
BBB or Baa2 0.000% 0.850%
--------------------------- ---------------------------- --------------------------------
▇▇▇▇▇ ▇
▇▇▇- ▇▇▇ ▇▇▇▇ 0.000% 1.075%
--------------------------- ---------------------------- --------------------------------
▇▇▇▇▇ ▇
▇▇▇- ▇▇ ▇▇▇▇ 0.000% 1.500%
--------------------------- ---------------------------- --------------------------------
▇▇▇▇▇ ▇
BB+ and Ba1 0.125% 1.625%
--------------------------- ---------------------------- --------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 0.250% 1.750%
--------------------------- ---------------------------- --------------------------------
and, as of any date on and after the Term Loan Conversion Date, a
percentage per annum determined by reference to the Public Debt Rating in
effect on such date as set forth below:
---------------------------- ---------------------------- --------------------------------
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/▇▇▇▇▇'▇ Base Rate Advances Eurocurrency Rate Advances
---------------------------- ---------------------------- --------------------------------
▇▇▇▇▇ ▇
BBB+ or Baa1 or above 0.475% 1.975%
---------------------------- ---------------------------- --------------------------------
LEVEL 2
BBB or Baa2 0.750% 2.250%
---------------------------- ---------------------------- --------------------------------
▇▇▇▇▇ ▇
▇▇▇- ▇▇▇ ▇▇▇▇ 1.000% 2.500%
---------------------------- ---------------------------- --------------------------------
▇▇▇▇▇ ▇
▇▇▇- ▇▇ ▇▇▇▇ 1.500% 3.000%
---------------------------- ---------------------------- --------------------------------
▇▇▇▇▇ ▇
BB+ and Ba1 3.000% 4.500%
---------------------------- ---------------------------- --------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 3.250% 4.750%
---------------------------- ---------------------------- --------------------------------
"APPLICABLE PERCENTAGE" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on such
date as set forth below:
-------------------------------- -----------------------------
Public Debt Rating Applicable
S&P/▇▇▇▇▇'▇ Percentage
-------------------------------- -----------------------------
LEVEL 1
BBB+ or Baa1 or above 0.125%
-------------------------------- -----------------------------
LEVEL 2
BBB or Baa2 0.150%
-------------------------------- -----------------------------
▇▇▇▇▇ ▇
▇▇▇- ▇▇▇ ▇▇▇▇ 0.200%
-------------------------------- -----------------------------
▇▇▇▇▇ ▇
▇▇▇- ▇▇ ▇▇▇▇ 0.250%
-------------------------------- -----------------------------
▇▇▇▇▇ ▇
BB+ and Ba1 0.375%
-------------------------------- -----------------------------
2
-------------------------------- -----------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 0.500%
-------------------------------- -----------------------------
"APPLICABLE UTILIZATION FEE" means, as of any date that the
aggregate Advances exceed 33% of the aggregate Revolving Credit
Commitments, a percentage per annum determined by reference to the Public
Debt Rating in effect on such date as set forth below:
-------------------------------- -----------------------------
Public Debt Rating Applicable
S&P/▇▇▇▇▇'▇ Utilization Fee
-------------------------------- -----------------------------
LEVEL 1
BBB+ or Baa1 or above 0.125%
-------------------------------- -----------------------------
LEVEL 2
BBB or Baa2 0.250%
-------------------------------- -----------------------------
▇▇▇▇▇ ▇
▇▇▇- ▇▇▇ ▇▇▇▇ 0.250%
-------------------------------- -----------------------------
▇▇▇▇▇ ▇
▇▇▇- ▇▇ ▇▇▇▇ 0.250%
-------------------------------- -----------------------------
▇▇▇▇▇ ▇
BB+ and Ba1 0.500%
-------------------------------- -----------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 0.500%
-------------------------------- -----------------------------
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"ASSUMING LENDER" has the meaning specified in Section 2.18(c).
"ASSUMPTION AGREEMENT" has the meaning specified in Section
2.18(c).
"AVAILABLE AMOUNT" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing),
converting all non-Dollar amounts into the Dollar Equivalent thereof at
such time.
"BASE RATE" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to
the highest of:
(a) the rate of interest announced publicly by Citibank in
New
York,
New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is
no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1% per
annum, PLUS (ii) the rate obtained by dividing (A) the latest three-week
moving average of secondary market morning offering rates in the United
States for three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted to the basis
of a year of 360 days) being determined weekly on each Monday (or, if
such day is not a Business Day, on the next succeeding Business Day) for
the three-week period ending on the previous Friday by Citibank on the
basis of such rates reported by certificate of deposit dealers to and
published by the Federal Reserve Bank of
3
New York or, if such publication shall be suspended or terminated, on the
basis of quotations for such rates received by Citibank from three
New
York certificate of deposit dealers of recognized standing selected by
Citibank, by (B) a percentage equal to 100% minus the average of the
daily percentages specified during such three-week period by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but not limited
to, any emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or including
(among other liabilities) three-month U.S. dollar non-personal time
deposits in the United States, plus (iii) the average during such
three-week period of the annual assessment rates estimated by Citibank
for determining the then current annual assessment payable by Citibank to
the Federal Deposit Insurance Corporation (or any successor) for insuring
U.S. dollar deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"BASE RATE ADVANCE" means an Advance denominated in Dollars that
bears interest as provided in Section 2.07(a)(i).
"BORROWER INFORMATION" has the meaning specified in Section 9.08.
"BORROWERS" means, collectively, the Company and the Designated
Subsidiaries from time to time.
"BORROWING" means a borrowing consisting of simultaneous Advances
of the same Type made by each of the Lenders pursuant to Section 2.01.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in
New York City and, if the
applicable Business Day relates to any Eurocurrency Rate Advances, on
which dealings are carried on in the London interbank market and banks
are open for business in London and in the country of issue of the
currency of such Eurocurrency Rate Advance (or, in the case of an Advance
denominated in Euros, on which the Trans-European Automated Real-Time
Gross Settlement Express Transfer (TARGET) System is open).
"COMMITMENT" means a Revolving Credit Commitment or a Letter of
Credit Commitment.
"COMMITTED CURRENCIES" means lawful currency of the United Kingdom
of Great Britain and Northern Ireland, lawful currency of The Swiss
Federation, lawful currency of Japan, Euro and any other currency
requested by the applicable Borrower that can be provided by all Lenders.
"CONSENTING LENDER" has the meaning specified in Section 2.18(b).
"CONSOLIDATED" refers to the consolidation of accounts in
accordance with GAAP.
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary or
other entity the accounts of which would be consolidated with those of
the Company in its Consolidated financial statements as of such date.
"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 or 2.09.
4
"DEBT" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables incurred in the ordinary course of such
Person's business), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all
obligations of such Person created or arising under any conditional sale
or other title retention agreement with respect to property acquired by
such Person (even though the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession
or sale of such property), (e) all obligations of such Person as lessee
under leases that have been or should be, in accordance with generally
accepted accounting principles, recorded as capital leases, (f) all
obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (g) all
obligations of such Person in respect of Hedge Agreements, (h) all Debt
of others referred to in clauses (a) through (g) above or clause (i)
below guaranteed directly or indirectly in any manner by such Person, or
in effect guaranteed directly or indirectly by such Person through an
agreement (1) to pay or purchase such Debt or to advance or supply funds
for the payment or purchase of such Debt, (2) to purchase, sell or lease
(as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such
Debt or to assure the holder of such Debt against loss, (3) to supply
funds to or in any other manner invest in the debtor (including any
agreement to pay for property or services irrespective of whether such
property is received or such services are rendered) or (4) otherwise to
assure a creditor against loss, and (i) all Debt referred to in clauses
(a) through (h) above secured by (or for which the holder of such Debt
has an existing right, contingent or otherwise, to be secured by) any
Lien on property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or
become liable for the payment of such Debt; PROVIDED, HOWEVER, that the
term "Debt" shall not include obligations under agreements providing for
indemnification, deferred purchase price payments or similar obligations
incurred or assumed in connection with the acquisition or disposition of
assets or stock, whether by merger or otherwise.
"DEBT FOR BORROWED MONEY" of the Company means, without
duplication, Debt for money borrowed (including unreimbursed drawings
under letters of credit) or any capitalized lease obligation, any
obligation under a purchase money mortgage, conditional sale or other
title retention agreement or any obligation under notes payable or drafts
accepted representing extensions of credit, but shall not include any
Debt in respect of Hedge Agreements or the Subsidiary Guaranty.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"DESIGNATED SUBSIDIARY" means any direct or indirect wholly-owned
Subsidiary of the Company designated for borrowing privileges under this
Agreement pursuant to Section 9.09.
"DESIGNATION AGREEMENT" means, with respect to any Designated
Subsidiary, an agreement in the form of Exhibit E hereto signed by such
Designated Subsidiary and the Company.
"DOLLARS" and the "$" sign each means lawful currency of the
United States of America.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assumption Agreement or the
Assignment and Acceptance pursuant to which it became a Lender, or such
other office of such Lender as such Lender may from time to time specify
to the Company and the Agent.
5
"EBITDA" means, for any period, net income (or net loss) PLUS the
sum of (a) Interest Expense, (b) income tax expense, (c) depreciation
expense, (d) amortization expense, (e) non-cash, non-recurring charges in
an amount not to exceed $161,400,000 taken (i) with respect to the
impairment of the assets of Brands Hatch Leisure Limited, Octagon
Worldwide Limited and Octagon Worldwide Inc. and their respective
Subsidiaries, in the fiscal year ended December 31, 2002 (which shall be
allocated to each of the fiscal quarters of 2002 as set forth in a
schedule previously delivered by the Company to the Lenders) and (ii)
with respect to all such other charges, in the fiscal year ended December
31, 2002 (which shall be allocated to each of the fiscal quarters of 2002
as set forth in a schedule previously delivered by the Company to the
Lenders), (f) non-recurring restructuring charges in an amount not to
exceed $200,000,000 (up to $175,000,000 of which may be cash charges)
recorded in the financial statements of the Company and its Consolidated
Subsidiaries for the fiscal quarter ended March 31, 2003, the fiscal
quarter ending June 30, 2003 and the fiscal quarter ending September 30,
2003, (g) non-cash, non-recurring charges in an amount not to exceed
$70,000,000 taken with respect to the impairment of the remaining book
value of Brands Hatch Leisure Limited, Octagon Worldwide Limited and
Octagon Worldwide Inc. and their respective Subsidiaries and (h) all
impairment charges taken with respect to capital expenditures made on or
after January 1, 2003 on behalf of Brands Hatch Leisure Limited, Octagon
Worldwide Limited and Octagon Worldwide Inc. and their respective
Subsidiaries, in each case determined in accordance with GAAP for such
period minus gain realized by the Company upon the sale of NFO Worldwide,
Inc.
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"ELIGIBLE ASSIGNEE" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Agent, each Issuing
Bank and, unless an Event of Default has occurred and is continuing at
the time any assignment is effected in accordance with Section 9.07, the
Company, each such approval not to be unreasonably withheld or delayed;
PROVIDED, HOWEVER, that neither the Company nor an Affiliate of the
Company shall qualify as an Eligible Assignee.
"EQUIVALENT" in Dollars of any Committed Currency on any date
means the equivalent in Dollars of such Committed Currency determined by
using the quoted spot rate at which the Sub-Agent's principal office in
London offers to exchange Dollars for such Committed Currency in London
at approximately 4:00 P.M. (London time) (unless otherwise indicated by
the terms of this Agreement) on such date as is required pursuant to the
terms of this Agreement, and the "Equivalent" in any Committed Currency
of Dollars means the equivalent in such Committed Currency of Dollars
determined by using the quoted spot rate at which the Sub-Agent's
principal office in London offers to exchange such Committed Currency for
Dollars in London at approximately 4:00 P.M. (London time) (unless
otherwise indicated by the terms of this Agreement) on such date as is
required pursuant to the terms of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV
of ERISA is a member of the Company's controlled group, or under common
control with the Company, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA EVENT" means (a) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC; (b) the application for a minimum funding waiver with
respect to a Plan; (c) the provision by the administrator of any Plan of
a notice of intent to terminate such Plan pursuant
6
to Section 4041(a)(2) of ERISA (including any such notice with respect to
a plan amendment referred to in Section 4041(e) of ERISA); (d) the
cessation of operations at a facility of the Company or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by the Company or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial employer,
as defined in Section 4001(a)(2) of ERISA; (f) the conditions for the
imposition of a lien under Section 302(f) of ERISA shall have been met
with respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section 307
of ERISA; or (h) the institution by the PBGC of proceedings to terminate
a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event
or condition described in Section 4042 of ERISA that constitutes grounds
for the termination of, or the appointment of a trustee to administer, a
Plan.
"EURIBO RATE" means, for any Interest Period, the rate per annum
appearing on Moneyline Telerate Markets Page 248 (or on any successor or
substitute page, or any successor to or substitute for Moneyline Telerate
Markets, providing rate quotations comparable to those currently provided
on such page of Moneyline Telerate Markets, as determined by the Agent
from time to time for purposes of providing quotations of interest rates
applicable to deposits in Euro by reference to the Banking Federation of
the European Union Settlement Rates for deposits in Euro) at
approximately 10:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for deposits in Euro
with a maturity comparable to such Interest Period or, if for any reason
such rate is not available, 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 respective rates per annum at which deposits in Euros
are offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference Bank's
Eurocurrency Rate Advance comprising part of such Borrowing to be
outstanding during such Interest Period and for a period equal to such
Interest Period (subject, however, to the provisions of Section 2.08).
"EURO" means the lawful currency of the European Union as
constituted by the Treaty of Rome which established the European
Community, as such treaty may be amended from time to time and as
referred to in the EMU legislation.
"EUROCURRENCY LENDING OFFICE" means, with respect to any Lender,
the office of such Lender specified as its "Eurocurrency Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement or
the Assignment and Acceptance pursuant to which it became a Lender (or,
if no such office is specified, its Domestic Lending Office), or such
other office of such Lender as such Lender may from time to time specify
to the Company and the Agent.
"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.
"EUROCURRENCY RATE" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by dividing
(a)(i) in the case of any Borrowing denominated in Dollars or any
Committed Currency other than Euro, the rate per annum (rounded upward to
the nearest whole multiple of 1/16 of 1% per annum) appearing on
Moneyline Telerate Markets Page 3750 (or any successor page) as the
London interbank offered rate for deposits in Dollars or the applicable
Committed Currency at approximately 11:00 A.M. (London time) two Business
Days prior to the first day of such Interest Period for a term comparable
to such Interest Period or, if for any reason such rate is not available,
the average (rounded upward to the
7
nearest whole multiple of 1/16 of 1% per annum, if such average is not
such a multiple) of the respective rates per annum at which deposits in
Dollars or the applicable Committed Currency are offered by the principal
office of each of the Reference Banks in London, England to prime banks
in the London interbank market at 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurocurrency Rate Advance
comprising part of such Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period (subject, however,
to the provisions of Section 2.08) or (ii) in the case of any Borrowing
denominated in Euro, the EURIBO Rate by (b) a percentage equal to 100%
minus the Eurocurrency Rate Reserve Percentage for such Interest Period.
"EUROCURRENCY RATE ADVANCE" means an Advance denominated in
Dollars or a Committed Currency that bears interest as provided in
Section 2.07(a)(ii).
"EUROCURRENCY RATE RESERVE PERCENTAGE" for any Interest Period for
all Eurocurrency Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in
New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest
rate on Eurocurrency Rate Advances is determined) having a term equal to
such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXTENSION DATE" has the meaning specified in Section 2.18(b).
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of
New York, or,
if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing
selected by it.
"GAAP" has the meaning specified in Section 1.03.
"GUARANTEED OBLIGATIONS" has the meaning specified in Section
7.01.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"INTEREST EXPENSE" means, for any period, without duplication,
interest expense (including the interest component on obligations under
capitalized leases), whether paid or accrued, on all Debt of the Company
and its Consolidated Subsidiaries for such period.
8
"INTEREST PERIOD" means, for each Eurocurrency Rate Advance
comprising part of the same Borrowing, the period commencing on the date
of such Eurocurrency Rate Advance or the date of the Conversion of any
Base Rate Advance into such Eurocurrency Rate Advance and ending on the
last day of the period selected by the Borrower requesting such Borrowing
pursuant to the provisions below and, thereafter, with respect to
Eurocurrency Rate Advances, each subsequent period commencing on the last
day of the immediately preceding Interest Period and ending on the last
day of the period selected by such Borrower pursuant to the provisions
below. The duration of each such Interest Period shall be one, two, three
or six months, or nine or twelve months if available to all Lenders, as
such Borrower may, upon notice received by the Agent not later than 11:00
A.M. (
New York City time) on the third Business Day prior to the first
day of such Interest Period, select; PROVIDED, HOWEVER, that:
(i) such Borrower may not select any Interest Period
that ends after the Termination Date or, if the Advances have been
converted to a term loan pursuant to Section 2.06(a) prior to such
selection, that ends after the Maturity Date;
(ii) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day
of such Interest Period shall be extended to occur on the next
succeeding Business Day, PROVIDED, HOWEVER, that, if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day;
and
(iv) whenever the first day of any Interest Period occurs
on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds
such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding calendar
month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ISSUING BANK" means an Initial Issuing Bank or any Eligible
Assignee to which a portion of the Letter of Credit Commitment hereunder
has been assigned pursuant to Section 9.07 so long as such Eligible
Assignee expressly agrees to perform in accordance with their terms all
of the obligations that by the terms of this Agreement are required to be
performed by it as an Issuing Bank and notifies the Agent of its
Applicable Lending Office (which information shall be recorded by the
Agent in the Register), for so long as the Initial Issuing Bank or
Eligible Assignee, as the case may be, shall have a Letter of Credit
Commitment.
"L/C CASH DEPOSIT ACCOUNT" means an interest bearing cash deposit
account to be established and maintained by the Agent, over which the
Agent shall have sole dominion and control, upon terms as may be
satisfactory to the Agent.
"L/C RELATED DOCUMENTS" has the meaning specified in Section
2.06(b)(i).
9
"LENDERS" means the Initial Lenders, each Issuing Bank, each
Assuming Lender that shall become a party hereto pursuant to Section 2.18
and each Person that shall become a party hereto pursuant to Section
9.07.
"LETTER OF CREDIT" has the meaning specified in Section 2.01(b).
"LETTER OF CREDIT AGREEMENT" has the meaning specified in Section
2.03(a).
"LETTER OF CREDIT COMMITMENT" means, with respect to each Issuing
Bank, the obligation of such Issuing Bank to issue Letters of Credit to
any Borrower in (a) the amount set forth opposite the Issuing Bank's name
on the signature pages hereto under the caption "Letter of Credit
Commitment", (b) if such Issuing Bank has become an Issuing Bank
hereunder pursuant to an Assumption Agreement, the amount set forth in
such Assumption Agreement, or (c) if such Issuing Bank has entered into
one or more Assignment and Acceptances, the amount set forth for such
Issuing Bank in the Register maintained by the Agent pursuant to Section
9.07(d) as such Issuing Bank's "Letter of Credit Commitment", in each
case as such amount may be reduced prior to such time pursuant to Section
2.05.
"LETTER OF CREDIT FACILITY" means, at any time, an amount equal to
the least of (a) the aggregate amount of the Issuing Banks' Letter of
Credit Commitments at such time, (b) $200,000,000 and (c) the aggregate
amount of the Revolving Credit Commitments, as such amount may be reduced
at or prior to such time pursuant to Section 2.05.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and the assignment of the right to receive income.
"LOAN DOCUMENT" means this Agreement, the Notes, the other L/C
Related Documents and the Subsidiary Guaranty.
"MATERIAL ADVERSE CHANGE" means any material adverse change in the
business, financial condition or results of operations of the Company and
its Consolidated Subsidiaries taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a)
the business, financial condition or results of operations of the Company
and its Consolidated Subsidiaries taken as a whole, (b) the rights and
remedies of the Agent or any Lender under this Agreement or any other
Loan Document or (c) the ability of the Company or any Subsidiary
Guarantor to perform its obligations under this Agreement or any other
Loan Document.
"MATERIAL SUBSIDIARY" means each Consolidated Subsidiary of the
Company organized in the United States or any political subdivision
thereof that had, as of the end of the most recently ended fiscal year,
aggregate revenues for such fiscal year equal to at least $25,000,000.
"MATURITY DATE" means the earlier of (a) the first anniversary of
the Termination Date and (b) the date of termination in whole of the
aggregate Commitments pursuant to Section 2.05 or 6.01.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
10
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate
is making or accruing an obligation to make contributions, or has within
any of the preceding five plan years made or accrued an obligation to
make contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, subject to Title IV of ERISA that (a) is
maintained for employees of the Company or any ERISA Affiliate and at
least one Person other than the Company and the ERISA Affiliates or (b)
was so maintained and in respect of which the Company or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in the
event such plan has been or were to be terminated.
"NET CASH PROCEEDS" means, with respect to any sale, lease,
transfer or other disposition of any asset by the Company or any of its
Subsidiaries or the incurrence or issuance of any Debt in the capital
markets having neither a put exercisable, nor a maturity, earlier than
July 31, 2005 or the sale or issuance of any equity interests by the
Company, the aggregate amount of cash received by the Company and its
Subsidiaries in connection with such transaction after deducting
therefrom only (without duplication) (a) reasonable and customary
brokerage commissions, underwriting fees and discounts, legal fees,
finder's fees and other similar fees and commissions, (b) the amount of
estimated incremental taxes payable in connection with or as a result of
such transaction and (c) the amount of any Debt secured by a Lien on such
asset that, by the terms of the agreement or instrument governing such
Debt, is required to be repaid upon such disposition, in each case to the
extent, but only to the extent, that the amounts so deducted are, at the
time of receipt of such cash, actually paid or payable to a Person that
is not an Affiliate of the Company and are properly attributable to such
transaction or to the asset that is the subject thereof, as determined by
an appropriate officer of the Company.
"NON-CONSENTING LENDER" has the meaning specified in Section
2.18(b).
"NOTE" means a promissory note of any Borrower payable to the
order of any Lender, delivered pursuant to a request made under Section
2.16 in substantially the form of Exhibit A hereto, evidencing the
aggregate indebtedness of such Borrower to such Lender resulting from the
Advances made by such Lender to such Borrower.
"NOTICE OF ISSUANCE" has the meaning specified in Section 2.03(a).
"NOTICE OF REVOLVING CREDIT BORROWING" has the meaning specified
in Section 2.02(a).
"PAYMENT OFFICE" means, for any Committed Currency, such office of
Citibank as shall be from time to time selected by the Agent and notified
by the Agent to the Company and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PERSON" means an individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated
association, joint venture, limited liability company or other entity, or
a government or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PUBLIC DEBT RATING" means, as of any date, the lowest rating that
has been most recently announced by either S&P or Moody's, as the case
may be, for any class of non-credit enhanced long-term senior unsecured
debt issued by the Company. For purposes of the foregoing, (a) if only
one of S&P and
11
Moody's shall have in effect a Public Debt Rating, the Applicable Margin,
the Applicable Percentage and the Applicable Utilization Fee shall be
determined by reference to the available Public Debt Rating announced by
either S&P or Moody's; (b) if neither S&P nor Moody's shall have in
effect a Public Debt Rating, the Applicable Margin, the Applicable
Percentage and the Applicable Utilization Fee will be set in accordance
with Level 6 under the definition of "APPLICABLE MARGIN", "APPLICABLE
PERCENTAGE" or "APPLICABLE UTILIZATION FEE", as the case may be; (c) if
such ratings established by S&P and Moody's shall fall within different
levels, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee shall be based upon the higher of such
ratings, except that, in the event that (x) the lower of such ratings is
more than one level below the higher of such ratings or (y) the lower of
such ratings is below investment grade and the higher of such ratings is
investment grade, the Applicable Margin, the Applicable Percentage and
the Applicable Utilization Fee shall be based upon the level immediately
above the lower of such ratings; (d) if any such rating established by
S&P or Moody's shall be changed, such change shall be effective as of the
date on which such change is first announced publicly by the rating
agency making such change; and (e) if S&P or Moody's shall change the
basis on which ratings are established, each reference to the Public Debt
Rating announced by S&P or Moody's, as the case may be, shall refer to
the then equivalent rating by S&P or Moody's, as the case may be.
"RATABLE SHARE" of any amount means, with respect to any Lender at
any time, the product of (a) a fraction the numerator of which is the
amount of such Lender's Revolving Credit Commitment at such time and the
denominator of which is the aggregate Revolving Credit Commitments at
such time and (b) such amount.
"REFERENCE BANKS" means Citibank, HSBC Bank USA and JPMorgan Chase
Bank.
"REGISTER" has the meaning specified in Section 9.07(d).
"REQUIRED LENDERS" means at any time Lenders owed at least a
majority in interest of the then aggregate outstanding principal amount
(based on the Equivalent in Dollars at such time) of the Advances, or, if
no such principal amount is then outstanding, Lenders having at least a
majority in amount of the Revolving Credit Commitments.
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Advances of the same Type made by each of the Lenders
pursuant to Section 2.01(a) and excluding any Advance made pursuant to
Section 2.03(c).
"REVOLVING CREDIT COMMITMENT" means as to any Lender the
obligation of such Lender to make Advances to any Borrower in (a) the
Dollar amount set forth opposite such Lender's name on the signature
pages hereof under the caption "Revolving Credit Commitment", (b) if such
Lender has become a Lender hereunder pursuant to an Assumption Agreement,
the Dollar amount set forth in such Assumption Agreement or (c) if such
Lender has entered into any Assignment and Acceptance, the Dollar amount
set forth for such Lender in the Register maintained by the Agent
pursuant to Section 9.07(d), as such amount may be reduced pursuant to
Section 2.05.
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, subject to Title IV of ERISA that (a) is
maintained for employees of the Company or any ERISA Affiliate and no
Person other than the Company and the ERISA Affiliates or (b) was so
maintained and in
12
respect of which the Company or any ERISA Affiliate could have liability
under Section 4069 of ERISA in the event such plan has been or were to be
terminated.
"SPC" has the meaning specified in Section 9.07(f) hereto.
"SUB-AGENT" means Citibank International plc.
"SUBSIDIARY" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or in
which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall or
might have voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such limited liability company,
partnership or joint venture or (c) the beneficial interest in such trust
or estate is at the time directly or indirectly owned or controlled by
such Person, by such Person and one or more of its other Subsidiaries or
by one or more of such Person's other Subsidiaries.
"SUBSIDIARY GUARANTOR" means each Subsidiary that is a party to
the Subsidiary Guaranty.
"SUBSIDIARY GUARANTY" has the meaning specified in Section
5.01(i).
"TERM LOAN CONVERSION DATE" means the Termination Date on which
all Advances outstanding on such date are converted into a term loan
pursuant to Section 2.06(a).
"TERM LOAN ELECTION" has the meaning specified in Section 2.06(a).
"TERMINATION DATE" means the earlier of (a) May 13, 2004, subject
to the extension thereof pursuant to Section 2.18 and (b) the date of
termination in whole of the Commitments pursuant to Section 2.05 or 6.01;
PROVIDED, HOWEVER, that the Termination Date of any Lender that is a
Non-Consenting Lender to any requested extension pursuant to Section 2.18
shall be the Termination Date in effect immediately prior to the
applicable Extension Date for all purposes of this Agreement.
"UNISSUED LETTER OF CREDIT COMMITMENT" means, with respect to any
Issuing Bank, the obligation of such Issuing Bank to issue Letters of
Credit to any Borrower in an amount (converting all non-Dollar amounts
into the Dollar Equivalent thereof) equal to the excess of (a) the amount
of its Letter of Credit Commitment over (b) the aggregate Available
Amount of all Letters of Credit issued by such Issuing Bank.
"UNUSED COMMITMENT" means, with respect to each Lender at any
time, (a) the amount of such Lender's Revolving Credit Commitment at such
time MINUS (b) the sum of (i) the aggregate principal amount of all
Advances (based in respect of any Advances denominated in a Committed
Currency on the Equivalent in Dollars at such time) made by such Lender
(in its capacity as a Lender) and outstanding at such time, PLUS (ii)
such Lender's Ratable Share of the aggregate Available Amount of all the
Letters of Credit outstanding at such time.
"VOTING STOCK" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.
13
SECTION 1.02. COMPUTATION OF TIME PERIODS. In this Agreement in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. ACCOUNTING TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION 2.01. THE ADVANCES AND LETTERS OF CREDIT. (a) ADVANCES.
Each Lender severally agrees, on the terms and conditions hereinafter set forth,
to make Advances to any Borrower from time to time on any Business Day during
the period from the Effective Date until the Termination Date in an aggregate
amount (based in respect of any Advances to be denominated in a Committed
Currency on the Equivalent in Dollars determined on the date of delivery of the
applicable Notice of Borrowing) for all Borrowers not to exceed at any time
outstanding such Lender's Unused Commitment. Each Borrowing shall be in an
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof in the case of Advances denominated in Dollars and the Equivalent of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof in the case
of Advances denominated in any Committed Currency (determined on the date of the
applicable Notice of Borrowing) and shall consist of Advances of the same Type
made on the same day by the Lenders ratably according to their respective
Revolving Credit Commitments. Within the limits of each Lender's Revolving
Credit Commitment, any Borrower may borrow under this Section 2.01(a), prepay
pursuant to Section 2.10 and reborrow under this Section 2.01(a).
(b) LETTERS OF CREDIT. Each Issuing Bank agrees, on the terms
and conditions hereinafter set forth, to issue letters of credit (each, a
"LETTER OF CREDIT") for the account of the Borrower from time to time on any
Business Day during the period from the Effective Date until 30 days before the
Termination Date (i) in an aggregate Available Amount for all Letters of Credit
issued by all Issuing Banks not to exceed at any time the Letter of Credit
Facility at such time, (ii) in an amount for each Issuing Bank (converting all
non-Dollar amounts into the then Dollar Equivalent thereof) not to exceed the
amount of such Issuing Banks' Letter of Credit Commitment at such time and (iii)
in an amount for each such Letter of Credit (converting all non-Dollar amounts
into the then Dollar Equivalent thereof) not to exceed an amount equal to the
Unused Commitments of the Lenders at such time. Each Letter of Credit shall be
in an amount of $1,000,000 or more denominated in Dollars, (pound)1,000,000 or
more denominated in lawful currency of the United Kingdom or (euro)1,000,000 or
more denominated in Euros. No Letter of Credit shall have an expiration date
(including all rights of the Borrower or the beneficiary to require renewal) of
greater than one year; PROVIDED that any Letter of Credit which provides for
automatic one-year extension(s) of such expiration date shall be deemed to
comply with the foregoing requirement if the Issuing Bank has the unconditional
right to prevent any such automatic extension from taking place. Within the
limits referred to above, the Borrower may request the issuance of Letters of
Credit under this Section 2.01(b), repay any Advances resulting from drawings
thereunder pursuant to Section 2.03(c) and request the issuance of additional
Letters of Credit under this Section 2.01(b). Each letter of credit listed on
Schedule 2.01(b) shall be deemed to constitute a Letter of Credit issued
hereunder, and each Lender that is an issuer of such a Letter of Credit shall,
for purposes of Section 2.03, be deemed to be an Issuing Bank for each such
letter of credit, PROVIDED than any renewal or replacement of any such letter of
credit shall be issued by an Issuing Bank pursuant to the terms of this
Agreement. The terms "issue", "issued", "issuance" and all similar terms, when
applied to a Letter of Credit, shall include any renewal, extension or amendment
thereof.
SECTION 2.02. MAKING THE ADVANCES. (a) Each Revolving Credit
Borrowing shall be made on notice, given not later than (x) 10:00 A.M. (
New York
City time) on the third Business Day prior to the date of the
14
proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in Dollars, (y) 4:00 P.M.
(London time) on the third Business Day prior to the date of the proposed
Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in any Committed Currency,
or (z) 12:00 noon (
New York City time) on the date of the proposed Revolving
Credit Borrowing in the case of a Revolving Credit Borrowing consisting of Base
Rate Advances, by any Borrower to the Agent (and, in the case of a Revolving
Credit Borrowing consisting of Eurocurrency Rate Advances, simultaneously to the
Sub-Agent), which shall give to each Lender prompt notice thereof by facsimile.
Each such notice of a Revolving Credit Borrowing (a "NOTICE OF REVOLVING CREDIT
BORROWING") shall be by telephone, confirmed immediately in writing, or
facsimile in substantially the form of Exhibit B hereto, specifying therein the
requested (i) date of such Revolving Credit Borrowing, (ii) Type of Advances
comprising such Revolving Credit Borrowing, (iii) aggregate amount of such
Revolving Credit Borrowing, and (iv) in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances, initial Interest Period and currency
for each such Advance; PROVIDED, HOWEVER, that if any such notice shall fail to
specify a currency, Dollars shall be deemed to have been specified. Each Lender
shall, before 2:00 P.M. (New York City time) on the date of such Revolving
Credit Borrowing, in the case of a Revolving Credit Borrowing consisting of
Advances denominated in Dollars, and before 4:00 P.M. (London time) on the date
of such Revolving Credit Borrowing, in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in any Committed Currency,
make available for the account of its Applicable Lending Office to the Agent at
the applicable Agent's Account, in same day funds, such Lender's ratable portion
of such Revolving Credit Borrowing. After the Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the
Agent will make such funds available to the Borrower requesting the Revolving
Credit Borrowing at the Agent's address referred to in Section 9.02 or, in the
case of a Revolving Credit Borrowing in a Committed Currency, at the applicable
Payment Office, as the case may be.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) no Borrower may select Eurocurrency Rate Advances for any
Revolving Credit Borrowing if the aggregate amount of such Borrowing is less
than $5,000,000 (or the Equivalent thereof in a Committed Currency) or if the
obligation of the Lenders to make Eurocurrency Rate Advances shall then be
suspended pursuant to Section 2.08 or 2.12 and (ii) the Eurocurrency Rate
Advances may not be outstanding as part of more than twenty separate Borrowings.
(c) Each Notice of Revolving Credit Borrowing of any Borrower
shall be irrevocable and binding on such Borrower. In the case of any Revolving
Credit Borrowing that the related Notice of Revolving Credit Borrowing specifies
is to be comprised of Eurocurrency Rate Advances, the Borrower requesting such
Revolving Credit Borrowing shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of Revolving Credit Borrowing for such
Revolving Credit 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 Lender to fund the Advance to be made
by such Lender as part of such Revolving Credit Borrowing when such Advance, as
a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender
prior to the time of any Revolving Credit Borrowing that such Lender will not
make available to the Agent such Lender's ratable portion of such Revolving
Credit Borrowing, the Agent may assume that such Lender has made such portion
available to the Agent on the date of such Revolving Credit Borrowing in
accordance with subsection (a) of this Section 2.02 and the Agent may, in
reliance upon such assumption, make available to the Borrower proposing the
Borrowing on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available to the Agent, such
Lender and such Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to such Borrower until the date such
amount is repaid to the Agent, at (i) in the case of such Borrower, the higher
of (A) the interest rate applicable at the time to Advances comprising such
Revolving Credit Borrowing and (B) the
15
cost of funds incurred by the Agent in respect of such amount and (ii) in the
case of such Lender, (A) the Federal Funds Rate in the case of Advances
denominated in Dollars or (B) the cost of funds incurred by the Agent in respect
of such amount in the case of Advances denominated in Committed Currencies. If
such Lender shall repay to the Agent such corresponding amount, such amount so
repaid shall constitute such Lender's Advance as part of such Revolving Credit
Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made
by it as part of any Revolving Credit Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Advance on the date of
such Revolving Credit Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the Advance to be made by such other Lender
on the date of any Revolving Credit Borrowing.
SECTION 2.03. ISSUANCE OF AND DRAWINGS AND REIMBURSEMENT
UNDER LETTERS OF CREDIT. (a) REQUEST FOR ISSUANCE. (i) Each Letter of Credit
shall be issued upon notice, given not later than 11:00 A.M. (New York City
time) on the fifth Business Day prior to the date of the proposed issuance of
such Letter of Credit (or on such shorter notice as the applicable Issuing
Bank may agree), by any Borrower to any Issuing Bank, and such Issuing Bank
shall give the Agent, prompt notice thereof by facsimile. Each such notice of
issuance of a Letter of Credit (a "NOTICE OF ISSUANCE") shall be by
telephone, confirmed immediately in writing, or facsimile, specifying therein
the requested (A) date of such issuance (which shall be a Business Day), (B)
Available Amount of such Letter of Credit, (C) expiration date of such Letter
of Credit (which shall not be later than one year after the date of issuance
thereof; PROVIDED that any Letter of Credit (which provides for automatic
one-year extension(s) of such expiration date shall be deemed to comply with
the foregoing requirement if the Issuing Bank has the unconditional right to
prevent any such automatic extension from taking place, and each Issuing
Bank hereby agrees to exercise such right to prevent any such automatic
extension for each Letter of Credit outstanding after the Termination Date),
(D) name and address of the beneficiary of such Letter of Credit and (E) form
of such Letter of Credit, and shall be accompanied by such customary
application and agreement for letter of credit as such Issuing Bank may
specify to the Borrower requesting such issuance for use in connection with
such requested Letter of Credit (a "LETTER OF CREDIT Agreement"). If the
requested form of such Letter of Credit is acceptable to such Issuing Bank in
its sole discretion, such Issuing Bank will, upon fulfillment of the
applicable conditions set forth in Article III, make such Letter of Credit
available to the Borrower requesting such issuance at its office referred to
in Section 9.02 or as otherwise agreed with such Borrower in connection with
such issuance. In the event and to the extent that the provisions of any
Letter of Credit Agreement shall conflict with this Agreement, the provisions
of this Agreement shall govern.
(b) PARTICIPATIONS. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the applicable Issuing Bank or the Lenders,
such Issuing Bank hereby grants to each Lender, and each Lender hereby acquires
from such Issuing Bank, a participation in such Letter of Credit equal to such
Lender's Ratable Share of the Available Amount of such Letter of Credit. Each
Borrower hereby agrees to each such participation. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and unconditionally
agrees to pay to the Agent, for the account of such Issuing Bank, such Lender's
Ratable Share of each drawing made under a Letter of Credit funded by such
Issuing Bank and not reimbursed by the applicable Borrower on the date made, or
of any reimbursement payment required to be refunded to any Borrower for any
reason. Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Revolving Credit Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender further acknowledges and agrees that its
participation in each Letter of Credit will be automatically adjusted to
reflect such Lender's Ratable Share of the Available Amount of such Letter of
Credit at each time such Lender's Revolving Credit Commitment is amended
pursuant to the operation of Section 2.18, an assignment in accordance with
Section 9.07 or otherwise pursuant to this Agreement.
(c) DRAWING AND REIMBURSEMENT. The payment by an Issuing Bank
of a draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by any such Issuing Bank of an Advance, which, in the
case of a Letter of Credit denominated in Dollars, shall be a Base Rate Advance,
in the amount of such draft or, in the case of a Letter of Credit denominated in
Sterling, shall be a Base Rate Advance in the Equivalent in Dollars on the date
such draft is paid. Each Issuing Bank shall give prompt notice (and such
16
Issuing Bank will use its commercially reasonable efforts to deliver such notice
within one Business Day) of each drawing under any Letter of Credit issued by it
to the Company, the applicable Borrower (if not the Company) and the Agent. Upon
written demand by such Issuing Bank, with a copy of such demand to the Agent and
the Company, each Lender shall pay to the Agent such Lender's Ratable Share of
such outstanding Advance, by making available for the account of its Applicable
Lending Office to the Agent for the account of such Issuing Bank, by deposit to
the Agent's Account, in same day funds, an amount equal to the portion of the
outstanding principal amount of such Advance to be funded by such Lender. Each
Lender acknowledges and agrees that its obligation to make Advances pursuant to
this paragraph in respect of Letters of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and continuance
of a Default or reduction or termination of the Revolving Credit Commitments,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Promptly after receipt thereof, the Agent
shall transfer such funds to such Issuing Bank. Each Lender agrees to fund its
Ratable Share of an outstanding Advance on (i) the Business Day on which demand
therefor is made by such Issuing Bank, PROVIDED that notice of such demand is
given not later than 11:00 A.M. (New York City time) on such Business Day, or
(ii) the first Business Day next succeeding such demand if notice of such demand
is given after such time. If and to the extent that any Lender shall not have so
made the amount of such Advance available to the Agent, such Lender agrees to
pay to the Agent forthwith on demand such amount together with interest thereon,
for each day from the date of demand by any such Issuing Bank until the date
such amount is paid to the Agent, at the Federal Funds Rate for its account or
the account of such Issuing Bank, as applicable. If such Lender shall pay to the
Agent such amount for the account of any such Issuing Bank on any Business Day,
such amount so paid in respect of principal shall constitute an Advance made by
such Lender on such Business Day for purposes of this Agreement, and the
outstanding principal amount of the Advance made by such Issuing Bank shall be
reduced by such amount on such Business Day.
(d) LETTER OF CREDIT REPORTS. Each Issuing Bank shall furnish
(A) to the Agent on the first Business Day of each week a written report
summarizing issuance and expiration dates of Letters of Credit issued during the
previous week and drawings during such week under all Letters of Credit, (B) to
each Lender on the first Business Day of each month a written report summarizing
issuance and expiration dates of Letters of Credit during the preceding month
and drawings during such month under all Letters of Credit and (C) to the Agent
and each Lender (with a copy to the Company) on the first Business Day of each
calendar quarter a written report setting forth the average daily aggregate
Available Amount during the preceding calendar quarter of all Letters of Credit.
(e) FAILURE TO MAKE ADVANCES. The failure of any Lender to
make the Advance to be made by it on the date specified in Section 2.03(c) shall
not relieve any other Lender of its obligation hereunder to make its Advance on
such date, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on such date.
SECTION 2.04. FEES. (a) FACILITY FEE. The Company agrees to
pay to the Agent for the account of each Lender a facility fee on the aggregate
amount of such Lender's Revolving Credit Commitment from the Effective Date in
the case of each Initial Lender and from the effective date specified in the
Assumption Agreement or in the Assignment and Acceptance pursuant to which it
became a Lender in the case of each other Lender until the Termination Date at a
rate per annum equal to the Applicable Percentage in effect from time to time,
payable in arrears quarterly on the last day of each March, June, September and
December, commencing June 30, 2003, and on the Termination Date.
(b) LETTER OF CREDIT FEES. (i) Each Borrower shall pay to the
Agent for the account of each Lender a commission on such Lender's Ratable Share
of the average daily aggregate Available Amount of all Letters of Credit issued
at the request of such Borrower and outstanding from time to time at a rate per
annum equal to the Applicable Margin for Eurocurrency Rate Advances in effect
from time to time during such calendar quarter, payable in arrears quarterly on
the third Business Day after the last day of each March, June, September and
17
December, commencing with the quarter ended June 30, 2003, and on and after the
later to occur of (x) the Termination Date or (y) if the Term Loan Election Date
occurs, the Maturity Date payable upon demand; PROVIDED that the Applicable
Margin shall be 2% above the Applicable Margin in effect upon the occurrence and
during the continuation of an Event of Default if the Borrowers are required to
pay default interest pursuant to Section 2.07(b).
(ii) Each Borrower shall pay to each Issuing Bank for its own
account a fee on the aggregate Available Amount of all Letters of
Credit issued by such Issuing Bank at the request of such Borrower and
outstanding from time to time during each calendar quarter at a rate
per annum equal to 0.125% payable in arrears quarterly on the third
Business Day after the last day of each March, June, September and
December, commencing with the quarter ended June 30, 2003, and on and
after the later to occur of (x) the Termination Date or (y) if the Term
Loan Election Date occurs, the Maturity Date payable upon demand.
(c) AGENT'S FEES. The Company shall pay to the Agent for its
own account such fees as may from time to time be agreed between the Company and
the Agent.
SECTION 2.05. TERMINATION OR REDUCTION OF THE COMMITMENTS. (a)
OPTIONAL. The Company shall have the right, upon at least three Business Days'
notice to the Agent, to permanently terminate in whole or reduce ratably in part
the unused portions of the respective Commitments of the Lenders, PROVIDED that
each partial reduction shall be in the aggregate amount of $10,000,000 or an
integral multiple of $1,000,000 in excess thereof.
(b) MANDATORY. On the Termination Date, if the Company has
made the Term Loan Election in accordance with Section 2.06(a) prior to such
date, and from time to time thereafter upon each prepayment of the Advances, the
Revolving Credit Commitments of the Lenders shall be automatically and
permanently reduced on a pro rata basis by an amount equal to the amount by
which (i) the aggregate Revolving Credit Commitments immediately prior to such
reduction EXCEEDS (ii) the aggregate unpaid principal amount of all Advances
outstanding at such time.
SECTION 2.06. REPAYMENT OF ADVANCES. (a) ADVANCES. Each
Borrower shall, subject to the next succeeding sentence, repay to the Agent for
the ratable account of the Lenders on the Termination Date the aggregate
principal amount of the Advances then outstanding. The Company may, upon not
less than 15 days' notice to the Agent, elect (the "TERM LOAN ELECTION") to
convert all of the Advances outstanding on the Termination Date in effect at
such time into a term loan which the Borrowers shall repay in full ratably to
the Lenders on the Maturity Date; PROVIDED that the Term Loan Election (x) may
not be made if (A) the applicable conditions set forth in Section 3.03 are not
met on the date of notice of the Term Loan Election or (B) Consolidated EBITDA
for the Company and its Consolidated Subsidiaries for the period of four fiscal
quarters most recently ended is less than $831,000,000 and (y) may not be
consummated on the Term Loan Conversion Date if (A) the applicable conditions
set forth in Section 3.03 are not met on the Term Loan Conversion Date or (B)
Consolidated EBITDA for the Company and its Consolidated Subsidiaries for the
period of four fiscal quarters most recently ended is less than $831,000,000
(PROVIDED that, for purposes of determining Consolidated EBITDA pursuant to this
Section 2.06(a), up to $125,000,000 of the $200,000,000 non-recurring
restructuring charges referenced in clause (f) of the definition of EBITDA may
be cash charges). All Advances converted into a term loan pursuant to this
Section 2.06(a) shall continue to constitute Advances except that the Borrowers
may not reborrow pursuant to Section 2.01(a) after all or any portion of such
Advances have been prepaid pursuant to Section 2.10.
(b) LETTER OF CREDIT REIMBURSEMENTS. The obligation of any
Borrower under this Agreement, any Letter of Credit Agreement and any other
agreement or instrument, in each case, to repay any Advance that results from
payment of a drawing under a Letter of Credit shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement, such Letter of Credit Agreement and such other agreement or
instrument under all circumstances, including, without limitation, the following
circumstances (it being understood that any such payment by a Borrower is
without prejudice to, and does not constitute a waiver of, any
18
rights such Borrower might have or might acquire as a result of the payment by
any Lender of any draft or the reimbursement by the Borrower thereof):
(i) any lack of validity or enforceability of this Agreement,
any Note, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C RELATED DOCUMENTS");
(ii) any change in the time, manner or place of payment of
any Letter of Credit;
(iii) the existence of any claim, set-off, defense or other
right that any Borrower may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), any Issuing Bank,
the Agent, any Lender or any other Person, whether in connection with
the transactions contemplated by the L/C Related Documents or any
unrelated transaction;
(iv) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by any Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not
substantially comply with the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any guarantee, for all or any of the obligations of any
Borrower in respect of the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing that might, but for the
provisions of this Section, constitute a legal or equitable discharge
of the Borrower's obligations hereunder.
SECTION 2.07. INTEREST ON ADVANCES. (a) SCHEDULED INTEREST.
Each Borrower shall pay interest on the unpaid principal amount of each Advance
made to it and owing to each Lender from the date of such Advance until such
principal amount shall be paid in full, at the following rates per annum:
(i) BASE RATE ADVANCES. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the sum of
(x) the Base Rate in effect from time to time PLUS (y) the Applicable
Margin in effect from time to time PLUS (z) the Applicable Utilization
Fee, if any, in effect from time to time, payable in arrears quarterly
on the last day of each March, June, September and December during such
periods and on the date such Base Rate Advance shall be Converted or
paid in full.
(ii) EUROCURRENCY RATE ADVANCES. During such periods as such
Advance is a Eurocurrency Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (x)
the Eurocurrency Rate for such Interest Period for such Advance PLUS
(y) the Applicable Margin in effect from time to time PLUS (z) the
Applicable Utilization Fee, if any, in effect from time to time,
payable in arrears on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each day
that occurs during such Interest Period every three months from the
first day of such Interest Period and on the date such Eurocurrency
Rate Advance shall be Converted or paid in full.
19
(b) DEFAULT INTEREST. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), the Borrowers shall
pay interest on (i) the unpaid principal amount of each Advance owing to each
Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii)
above, at a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid on such Advance pursuant to clause (a)(i) or (a)(ii)
above and (ii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable hereunder that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to clause (a)(i) above.
SECTION 2.08. INTEREST RATE DETERMINATION. (a) Each Reference
Bank agrees to furnish to the Agent timely information for the purpose of
determining each Eurocurrency Rate. If any one or more of the Reference Banks
shall not furnish such timely information to the Agent for the purpose of
determining any such interest rate, the Agent shall determine such interest rate
on the basis of timely information furnished by the remaining Reference Banks.
The Agent shall give prompt notice to the Company and the Lenders of the
applicable interest rate determined by the Agent for purposes of Section
2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference Bank for
the purpose of determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the
Required Lenders notify the Agent that (i) they are unable to obtain matching
deposits in the London inter-bank market at or about 11:00 A.M. (London time) on
the second Business Day before the making of a Borrowing in sufficient amounts
to fund their respective Advances as a part of such Borrowing during its
Interest Period or (ii) the Eurocurrency Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurocurrency Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Company and the
Lenders, whereupon (A) the Borrower of such Eurocurrency Advances will, on the
last day of the then existing Interest Period therefor, (1) if such Eurocurrency
Rate Advances are denominated in Dollars, either (x) prepay such Advances or (y)
Convert such Advances into Base Rate Advances and (2) if such Eurocurrency Rate
Advances are denominated in any Committed Currency, either (x) prepay such
Advances or (y) redenominate such Advances into an Equivalent amount of Dollars
and Convert such Advances into Base Rate Advances and (B) the obligation of the
Lenders to make, or to Convert Advances into, Eurocurrency Rate Advances shall
be suspended until the Agent shall notify the Company and the Lenders that the
circumstances causing such suspension no longer exist.
(c) If any Borrower shall fail to select the duration of any
Interest Period for any Eurocurrency Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify such Borrower and the Lenders and such Advances
will automatically, on the last day of the then existing Interest Period
therefor, (i) if such Eurocurrency Rate Advances are denominated in Dollars,
Convert into Base Rate Advances and (ii) if such Eurocurrency Rate Advances are
denominated in a Committed Currency, be redenominated into an Equivalent amount
of Dollars and be Converted into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount
of Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $5,000,000 (or the Equivalent
thereof in any Committed Currency), such Advances shall automatically Convert
into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any
Event of Default under Section 6.01(a), (i) each Eurocurrency Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
(A) if such Eurocurrency Rate Advance is denominated in Dollars, be Converted
into a Base Rate Advance and (B) if such Eurocurrency Rate Advance is
denominated in any Committed Currency, be redenominated
20
into an Equivalent amount of Dollars and be Converted into a Base Rate Advance
and (ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurocurrency Rate Advances shall be suspended.
(f) If Moneyline Telerate Markets Page 3750 is unavailable and
fewer than two Reference Banks furnish timely information to the Agent for
determining the Eurocurrency Rate for any Eurocurrency Rate Advances,
(i) the Agent shall forthwith notify the Company and the
Lenders that the interest rate cannot be determined for such
Eurocurrency Rate Advances,
(ii) with respect to Eurocurrency Rate Advances, each such
Advance will automatically, on the last day of the then existing
Interest Period therefor, (A) if such Eurocurrency Rate Advance is
denominated in Dollars, be prepaid by the applicable Borrower or be
automatically Converted into a Base Rate Advance and (B) if such
Eurocurrency Rate Advance is denominated in any Committed Currency, be
prepaid by the applicable Borrower or be automatically redenominated
into an Equivalent amount of Dollars and be Converted into a Base Rate
Advance, and
(iii) the obligation of the Lenders to make Eurocurrency Rate
Advances or to Convert Base Rate Advances into Eurocurrency Rate
Advances shall be suspended until the Agent shall notify the Company
and the Lenders that the circumstances causing such suspension no
longer exist.
SECTION 2.09. OPTIONAL CONVERSION OF ADVANCES. The Borrower of
any Advance may on any Business Day, upon notice given to the Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Conversion and subject to the provisions of Sections 2.08 and
2.12, Convert all Advances denominated in Dollars of one Type comprising the
same Borrowing into Advances denominated in Dollars of the other Type; PROVIDED,
HOWEVER, that any Conversion of Eurocurrency Rate Advances into Base Rate
Advances shall be made only on the last day of an Interest Period for such
Eurocurrency Rate Advances, any Conversion of Base Rate Advances into
Eurocurrency Rate Advances shall be in an amount not less than the minimum
amount specified in Section 2.02(b) and no Conversion of any Advances shall
result in more separate Borrowings than permitted under Section 2.02(b). Each
such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Dollar denominated Advances to
be Converted, and (iii) if such Conversion is into Eurocurrency Rate Advances,
the duration of the initial Interest Period for each such Advance. Each notice
of Conversion shall be irrevocable and binding on the Borrower giving such
notice.
SECTION 2.10. PREPAYMENTS OF ADVANCES. (a) OPTIONAL. Each
Borrower may, upon notice at least one Business Day prior to the date of such
prepayment, in the case of Eurocurrency Rate Advances, and not later than 11:00
A.M. (New York City time) on the date of such prepayment, in the case of Base
Rate Advances, to the Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given such Borrower shall,
prepay the outstanding principal amount of the Advances comprising part of the
same Borrowing in whole or ratably in part, together with accrued interest to
the date of such prepayment on the principal amount prepaid; PROVIDED, HOWEVER,
that (x) each partial prepayment shall be in an aggregate principal amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof in the case
of Advances denominated in Dollars and the Equivalent of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof in the case of Advances
denominated in any Committed Currencies (determined on the date notice of
prepayment is given) and (y) in the event of any such prepayment of a
Eurocurrency Rate Advance, such Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 9.04(c).
21
(b) MANDATORY PREPAYMENTS. (i) If the Agent notifies the
Company on the second Business Day prior to any interest payment date that the
sum of (A) the aggregate principal amount of all Advances denominated in Dollars
then outstanding plus (B) the Equivalent in Dollars (both (A) and (B) determined
on the third Business Day prior to such interest payment date) of the aggregate
principal amount of all Advances denominated in Committed Currencies then
outstanding exceeds 103% of the aggregate Revolving Credit Commitments of the
Lenders on such date, the Borrowers shall, within two Business Days after
receipt of such notice, prepay the outstanding principal amount of any Advances
owing by the Borrowers in an aggregate amount sufficient to reduce such sum
after such payment to an amount not to exceed 100% of the aggregate Revolving
Credit Commitments of the Lenders. The Agent shall provide such notice to the
Company at the request of any Lender.
(ii) Each prepayment made pursuant to this Section 2.10(b)
shall be made together with any interest accrued to the date of such prepayment
on the principal amounts prepaid and, in the case of any prepayment of a
Eurocurrency Rate Advance on a date other than the last day of an Interest
Period or at its maturity, any additional amounts which the Borrowers shall be
obligated to reimburse to the Lenders in respect thereof pursuant to Section
9.04(c). The Agent shall give prompt notice of any prepayment required under
this Section 2.10(b) to the Company and the Lenders.
(c) LETTERS OF CREDIT. Unless the Termination Date has been
extended in accordance with Section 2.18, the Company shall, on the day that is
15 days prior to the Termination Date, pay to the Agent for deposit in the L/C/
Cash Deposit Account an amount sufficient to cause the aggregate amount on
deposit in the L/C Cash Deposit Account to equal the sum of (a) 103% of the
Dollar Equivalent of the aggregate Available Amount of all Letters of Credit
then outstanding denominated in Sterling or Euros and (b) 100% of the aggregate
Available Amount of all Letters of Credit then outstanding denominated in
Dollars. Upon the drawing of any such Letter of Credit, to the extent funds are
on deposit in the L/C Cash Deposit Account, such funds shall be applied to
reimburse the Issuing Banks to the extent permitted by applicable law, and if so
applied, then such reimbursement shall be deemed a repayment of the
corresponding Advance in respect of such Letter of Credit. After all such
Letters of Credit shall have expired or been fully drawn upon and all other
obligations of the Borrowers thereunder shall have been paid in full, the
balance, if any, in such L/C Cash Deposit Account shall be promptly returned to
the Company.
SECTION 2.11. INCREASED COSTS. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation after the date hereof or (ii) the compliance with any guideline or
request issued after the date hereof by any central bank or other governmental
authority including, without limitation, any agency of the European Union or
similar monetary or multinational authority (whether or not having the force of
law), there shall be any increase in the cost to any Lender of agreeing to make
or making, funding or maintaining Eurocurrency Rate Advances or agreeing to
issue or of issuing or maintaining or participating in Letters of Credit
(excluding for purposes of this Section 2.11 any such increased costs resulting
from (i) Taxes or Other Taxes (as to which Section 2.14 shall govern) and (ii)
changes in the basis of taxation of overall net income or overall gross income
by the United States or by the foreign jurisdiction or state under the laws of
which such Lender is organized or has its Applicable Lending Office or any
political subdivision thereof), then the Company shall from time to time, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such increased cost. A certificate as to the amount of such
increased cost, submitted to the Company and the Agent by such Lender, shall
constitute prima facie evidence of such amounts.
(b) If any Lender determines that due to the introduction of
or any change in or in the interpretation of any law or regulation or any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law) after the date hereof, taking into
consideration the policies of such Lender and any corporation controlling such
Lender with respect to capital adequacy, increases or would increase the amount
of capital required or expected to be maintained by such Lender or any
corporation controlling such
22
Lender and that the amount of such increase is based upon the existence of such
Lender's commitment to lend hereunder and other commitments of this type and the
effect of such increase is to reduce the rate of return on such Lender's capital
or on the capital of the corporation controlling such Lender, then, upon demand
by such Lender (with a copy of such demand to the Agent), the Company shall pay
to the Agent for the account of such Lender, from time to time as specified by
such Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder. A certificate as to such amounts
submitted to the Company and the Agent by such Lender shall constitute prima
facie evidence of such amounts.
(c) If any governmental authority of the jurisdiction of any
Committed Currency (or any other jurisdiction in which the funding operations of
any Lender shall be conducted with respect to such Committed Currency) shall
introduce or increase any reserve, liquid asset or similar requirement after
the date hereof with respect to any category of deposits or liabilities
customarily used to fund loans in such Committed Currency, or by reference to
which interest rates applicable to loans in such Committed Currency are
determined, and the result of such requirement shall be to increase the cost to
such Lender of making or maintaining any Advance denominated in a Committed
Currency, and such Lender shall deliver to the relevant Borrowers a notice
requesting compensation under this paragraph, then the relevant Borrowers will
pay to such Lender on each date on which interest is paid pursuant to
Section 2.07 with respect to each affected Advance denominated in a Committed
Currency, an amount that will compensate such Lender for such additional cost.
A certificate in reasonable detail as to the amount of such increased cost,
submitted to the Company and the Agent by such Lender shall constitute prima
facie evidence of such amounts.
SECTION 2.12. ILLEGALITY. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Agent that the introduction of
or any change in or in the interpretation of any law or regulation after the
date hereof makes it unlawful, or any central bank or other governmental
authority asserts after the date hereof that it is unlawful, for any Lender or
its Eurocurrency Lending Office to perform its obligations hereunder to make
Eurocurrency Rate Advances in Dollars or any Committed Currency or to fund or
maintain Eurocurrency Rate Advances in Dollars or any Committed Currency
hereunder, (a) each Eurocurrency Rate Advance will automatically, upon such
demand, (i) if such Eurocurrency Rate Advance is denominated in Dollars, be
Converted into a Base Rate Advance and (ii) if such Eurocurrency Rate Advance is
denominated in any Committed Currency, be redenominated into an Equivalent
amount of Dollars and be Converted into a Base Rate Advance and (b) the
obligation of the Lenders to make Eurocurrency Rate Advances or to Convert
Advances into Eurocurrency Rate Advances shall be suspended until the Agent
shall notify the Company and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.13. PAYMENTS AND COMPUTATIONS. (a) Each Borrower
shall make each payment hereunder, except with respect to principal of, interest
on, and other amounts relating to, Advances denominated in a Committed Currency,
not later than 11:00 A.M. (New York City time) on the day when due in Dollars to
the Agent at the applicable Agent's Account in same day funds and without
deduction, set off or counterclaim. Each Borrower shall make each payment
hereunder with respect to principal of, interest on, and other amounts relating
to, Advances denominated in a Committed Currency, not later than 11:00 A.M. (at
the Payment Office for such Committed Currency) on the day when due in such
Committed Currency to the Agent, by deposit of such funds to the applicable
Agent's Account in same day funds. The Agent will promptly thereafter cause to
be distributed like funds relating to the payment of principal or interest, fees
or commissions ratably (other than amounts payable pursuant to Section
2.04(b)(ii), 2.11, 2.14 or 9.04(c)) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon any Assuming Lender becoming a Lender hereunder as
a result of an extension of the Termination Date pursuant to Section 2.18, and
upon the Agent's receipt of such Lender's Assumption Agreement and recording of
the
23
information contained therein in the Register, from and after the applicable
Extension Date the Agent shall make all payments hereunder and under any Notes
issued in connection therewith in respect of the interest assumed thereby to the
Assuming Lender. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(c), from and after the effective date specified in such Assignment
and Acceptance, the Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender 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.
(b) All computations of interest based on the Base Rate shall
be made by the Agent on the basis of a year of 365 or 366 days, as the case may
be, all computations of interest based on the Eurocurrency Rate or the Federal
Funds Rate and of fees and Letter of Credit commissions shall be made by the
Agent 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, fees or commissions are payable. Each
determination by the 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 shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest, fee or commission,
as the case may be; PROVIDED, HOWEVER, that, if such extension would cause
payment of interest on or principal of Eurocurrency 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 Agent shall have received notice from any
Borrower prior to the date on which any payment is due to the Lenders hereunder
that such Borrower will not make such payment in full, the Agent may assume that
such Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent such Borrower shall not have so made such payment in full to
the Agent, each Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Agent, at (i) the Federal Funds Rate in the case of Advances
denominated in Dollars or (ii) the cost of funds incurred by the Agent in
respect of such amount in the case of Advances denominated in Committed
Currencies.
SECTION 2.14. TAXES. (a) Any and all payments by each Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.13,
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 Lender and the Agent, taxes
imposed on its overall net income, and franchise taxes imposed on it in lieu of
net income taxes, by the jurisdiction under the laws of which such Lender or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction
of such Lender's Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "TAXES"). If any Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender or the Agent, (i) 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 2.14) such Lender or
the Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Borrower shall make such
deductions and (iii) such Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
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(b) In addition, the Company shall pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, performing under, or otherwise
with respect to, this Agreement or the Notes (hereinafter referred to as "OTHER
TAXES").
(c) Each Borrower shall indemnify each Lender and the Agent
for and hold it harmless against the full amount of Taxes or Other Taxes
(including, without limitation, taxes of any kind imposed by any jurisdiction on
amounts payable under this Section 2.14) imposed on or paid by such Lender or
the Agent (as the case may be) 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 Lender or the Agent (as the case
may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes,
each Borrower shall furnish to the Agent, at its address referred to in Section
9.02, the original or a certified copy of a receipt evidencing such payment. In
the case of any payment hereunder or under the Notes by or on behalf of such
Borrower through an account or branch outside the United States or by or on
behalf of such Borrower by a payor that is not a United States person, if such
Borrower determines that no Taxes are payable in respect thereof, such Borrower
shall furnish, or shall cause such payor to furnish, to the Agent, at such
address, an opinion of counsel acceptable to the Agent stating that such payment
is exempt from Taxes. For purposes of this subsection (d) and subsection (e),
the terms "UNITED STATES" and "UNITED STATES PERSON" shall have the meanings
specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each Initial Lender and on the date of the
Assumption Agreement or the Assignment and Acceptance pursuant to which it
becomes a Lender in the case of each other Lender, and from time to time
thereafter as requested in writing by the Company (but only so long as such
Lender remains lawfully able to do so), shall provide each of the Agent and the
Company with two original Internal Revenue Service forms W-8BEN or W-8ECI, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Lender is exempt from or entitled to a reduced
rate of United States withholding tax on payments pursuant to this Agreement or
the Notes. If the form provided by a Lender at the time such Lender first
becomes a party to this Agreement indicates a United States interest withholding
tax rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Lender provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
form; PROVIDED, HOWEVER, that, if at the date of the Assignment and Acceptance
pursuant to which a Lender assignee becomes a party to this Agreement, the
Lender assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to the
Lender assignee on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date hereof
by Internal Revenue Service form W-8BEN or W-8ECI, that the Lender reasonably
considers to be confidential, the Lender shall give notice thereof to the
Borrowers and shall not be obligated to include in such form or document such
confidential information.
(f) For any period with respect to which a Lender has failed
to provide the Company with the appropriate form described in Section 2.14(e)
(OTHER THAN if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under subsection (e) above), such Lender shall not be
entitled to indemnification under Section 2.14(a) or (c) with respect to Taxes
imposed by the United States by reason of such failure; PROVIDED, HOWEVER, that
should a Lender become subject to Taxes because of its failure to deliver a form
required hereunder, the Company shall take
25
such steps at such Lender's expense as the Lender shall reasonably request to
assist the Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.14 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurocurrency Lending Office 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
Lender, be otherwise disadvantageous to such Lender.
SECTION 2.15. SHARING OF PAYMENTS, ETC. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Advances owing to it (other
than pursuant to Section 2.11, 2.14 or 9.04(c)) in excess of its Ratable Share
of payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender 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 Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. Each Borrower agrees that any Lender so
purchasing a participation from another Lender 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 Lender were the direct creditor of such Borrower in the amount of such
participation.
SECTION 2.16. EVIDENCE OF DEBT. (a) Each Lender shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Advance owing
to such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder in respect
of Advances. Each Borrower agrees that upon notice by any Lender to such
Borrower (with a copy of such notice to the Agent) to the effect that a Note is
required or appropriate in order for such Lender to evidence (whether for
purposes of pledge, enforcement or otherwise) the Advances owing to, or to be
made by, such Lender, such Borrower shall promptly execute and deliver to such
Lender a Note payable to the order of such Lender in a principal amount up to
the Revolving Credit Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section
9.07(d) shall include a control account, and a subsidiary account for each
Lender, in which accounts (taken together) shall be recorded (i) the date and
amount of each Borrowing made hereunder, the Type of Advances comprising such
Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the
terms of each Assumption Agreement and each Assignment and Acceptance delivered
to and accepted by it, (iii) the amount of any principal or interest due and
payable or to become due and payable from each Borrower to each Lender hereunder
and (iv) the amount of any sum received by the Agent from such Borrower
hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register
pursuant to subsection (b) above, and by each Lender in its account or accounts
pursuant to subsection (a) above, shall be PRIMA FACIE evidence of the amount of
principal and interest due and payable or to become due and payable from each
Borrower to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement, absent manifest error;
PROVIDED, HOWEVER, that the failure of the Agent or such Lender to make an
entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of any
Borrower under this Agreement.
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SECTION 2.17. USE OF PROCEEDS. The proceeds of the Advances
shall be available (and each Borrower agrees that it shall use such proceeds)
solely for general corporate purposes of the Company and its Consolidated
Subsidiaries, including commercial paper backstop and acquisition financing;
PROVIDED, however, that the proceeds of the Advances shall not be used to prepay
any amounts outstanding under the Company's five Note Purchase Agreements with
The Prudential Insurance Company of America outstanding on the date hereof or
any other long-term Debt of the Company.
SECTION 2.18. EXTENSION OF TERMINATION DATE. (a) Provided that
the Company has not previously made a Term Loan Election pursuant to Section
2.06(a), at least 35 days but not more than 45 days prior to the Termination
Date, the Company, by written notice to the Agent, may request an extension of
the Termination Date in effect at such time by 364 days from its then scheduled
expiration. The Agent shall promptly notify each Lender of such request, and
each Lender shall in turn, in its sole discretion, not later than 25 days prior
to the Termination Date, notify the Company and the Agent in writing as to
whether such Lender will consent to such extension. If any Lender shall fail to
notify the Agent and the Company in writing of its consent to any such request
for extension of the Termination Date at least 24 days prior to the Termination
Date, such Lender shall be deemed to be a Non-Consenting Lender with respect to
such request. The Agent shall notify the Company on the next succeeding Business
Day of the decision of the Lenders regarding the Company's request for an
extension of the Termination Date.
(b) If all the Lenders consent in writing to any such request
in accordance with subsection (a) of this Section 2.18, the Termination Date in
effect at such time shall, effective as at the Termination Date (the "EXTENSION
DATE"), be extended for 364 days; PROVIDED that on each Extension Date the
applicable conditions set forth in Article III shall be satisfied. If less than
all of the Lenders consent in writing to any such request in accordance with
subsection (a) of this Section 2.18, the Termination Date in effect at such time
shall, effective as at the applicable Extension Date and subject to subsection
(d) of this Section 2.18, be extended as to those Lenders that so consented
(each a "CONSENTING LENDER") but shall not be extended as to any other Lender
(each a "NON-CONSENTING LENDER"). To the extent that the Termination Date is not
extended as to any Lender pursuant to this Section 2.18 and the Revolving Credit
Commitment or Unissued Letter of Credit Commitment of such Lender is not assumed
in accordance with subsection (c) of this Section 2.18 on or prior to the
applicable Extension Date, the Revolving Credit Commitment and Unissued Letter
of Credit Commitment of such Non-Consenting Lender shall automatically terminate
in whole on such unextended Termination Date without any further notice or other
action by the Company, such Lender or any other Person; PROVIDED that such
Non-Consenting Lender's rights under Sections 2.11, 2.14 and 9.04, and its
obligations under Section 8.05, shall survive the Termination Date for such
Lender as to matters occurring prior to such date. It is understood and agreed
that no Lender shall have any obligation whatsoever to agree to any request made
by the Company for any requested extension of the Termination Date.
(c) If less than all of the Lenders consent to any such
request pursuant to subsection (a) of this Section 2.18, the Agent shall
promptly so notify the Consenting Lenders, and each Consenting Lender may, in
its sole discretion, give written notice to the Agent not later than 10 days
prior to the Termination Date of the amount of the Non-Consenting Lenders'
Revolving Credit Commitments or Unissued Letter of Credit Commitments for which
it is willing to accept an assignment. If the Consenting Lenders notify the
Agent that they are willing to accept assignments of Revolving Credit
Commitments in an aggregate amount that exceeds the amount of the Revolving
Credit Commitments of the Non-Consenting Lenders, such Revolving Credit
Commitments shall be allocated among the Consenting Lenders willing to accept
such assignments in such amounts as are agreed between the Company and the
Agent. If the Consenting Lenders notify the Agent that they are willing to
accept assignments of Unissued Letter of Credit Commitments in an aggregate
amount that exceeds the amount of the Unissued Letter of Credit Commitments of
the Non-Consenting Lenders, such Unissued Letter of Credit Commitments shall be
allocated among the Consenting Lenders willing to accept such assignments in
such amounts as are agreed between the Company and the Agent. If after giving
effect to the assignments of Commitments described above there remain any
Revolving Credit Commitments or Unissued Letter of Credit Commitments of
Non-Consenting Lenders, the
27
Company may arrange for one or more Consenting Lenders or other Eligible
Assignees (each, an "ASSUMING Lender") to assume, effective as of the Extension
Date, any Non-Consenting Lender's Revolving Credit Commitment or Unissued Letter
of Credit Commitment and all of the obligations of such Non-Consenting Lender
under this Agreement thereafter arising, without recourse to or warranty by, or
expense to, such Non-Consenting Lender; PROVIDED, HOWEVER, that the amount of
(x) the Revolving Credit Commitment of any such Assuming Lender as a result of
such substitution shall in no event be less than $10,000,000 unless the amount
of such Commitment of such Non-Consenting Lender is less than $10,000,000, in
which case such Assuming Lender shall assume all of such lesser amount and (y)
the Unissued Letter of Credit Commitment of any such Assuming Lender as a result
of such substitution shall in no event be less than $1,000,000; and PROVIDED
FURTHER that:
(i) any such Consenting Lender or Assuming Lender shall have
paid to such Non-Consenting Lender (A) the aggregate principal amount
of, and any interest accrued and unpaid to the effective date of the
assignment on, the outstanding Advances, if any, of such Non-Consenting
Lender PLUS (B) any accrued but unpaid facility fees and commissions
owing to such Non-Consenting Lender as of the effective date of such
assignment;
(ii) all additional costs reimbursements, expense
reimbursements and indemnities payable to such Non-Consenting Lender,
and all other accrued and unpaid amounts owing to such Non-Consenting
Lender hereunder, as of the effective date of such assignment shall
have been paid to such Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 9.07(a) for such
assignment shall have been paid.
At least three Business Days prior to any Extension Date, (A) each such
Assuming Lender, if any, shall have delivered to the Company and the Agent an
agreement in form and substance reasonably satisfactory to the Agent and the
Company (each, an "ASSUMPTION AGREEMENT"), duly executed by such Assuming
Lender, such Non-Consenting Lender, the Company and the Agent, (B) any such
Consenting Lender shall have delivered confirmation in writing satisfactory
to the Company and the Agent as to the increase in the amount of its
Revolving Credit Commitment or Unissued Letter of Credit Commitment and (C)
each Non-Consenting Lender being replaced pursuant to this Section 2.18 shall
have delivered to the Agent any Note or Notes held by such Non-Consenting
Lender. Upon the payment or prepayment of all amounts referred to in clauses
(i), (ii) and (iii) above, each such Consenting Lender or Assuming Lender, as
of the Extension Date, will be substituted for such Non-Consenting Lender
under this Agreement and shall be a Lender for all purposes of this
Agreement, without any further acknowledgment by or the consent of the other
Lenders, and the obligations of each such Non-Consenting Lender hereunder
shall, by the provisions hereof, be released and discharged, PROVIDED that,
with respect to each Letter of Credit issued by any such Non-Consenting
Lender outstanding on such Extension Date, (x) the participations of the
Lenders in such Letters of Credit shall automatically terminate on the
Termination Date applicable to such Non-Consenting Lender (and such
Non-Consenting Lender shall execute and deliver to each Lender (at such
Lender's expense) any documents reasonably requested by such Lender to
evidence such termination) and (y) the provisions of Section 2.10(c) shall
apply MUTATIS MUTANDIS with respect to each Letter of Credit issued by such
Non-Consenting Lender and such Lender shall be entitled to direct the Agent
to pay amounts out of the L/C Cash Deposit Account upon any drawing under
such Letter of Credit.
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(d) If (after giving effect to any assignments or assumptions
pursuant to subsection (c) of this Section 2.18) Lenders having Revolving Credit
Commitments in an amount equal to the greater of (x) 50% of the Revolving Credit
Commitments in effect immediately prior to the Extension Date and (y) the sum of
the aggregate principal amount of the Advances made or assumed by the Consenting
Lenders and the Assuming Lenders plus the aggregate Available Amount of all
outstanding Letters of Credit issued by Consenting Lenders consent in writing to
a requested extension (whether by execution or delivery of an Assumption
Agreement or otherwise) not later than one Business Day prior to such Extension
Date , the Agent shall so notify the Company, and, subject to the satisfaction
of the applicable conditions in Article III, the Termination Date then in effect
shall be extended for the additional 364-day period as described in subsection
(a) of this Section 2.18, and all references in this Agreement, and in the
Notes, if any, to the "TERMINATION DATE" shall, with respect to each Consenting
Lender and each Assuming Lender for such Extension Date, refer to the
Termination Date as so extended. Promptly following each Extension Date, the
Agent shall notify the Lenders (including, without limitation, each Assuming
Lender) of the extension of the scheduled Termination Date in effect immediately
prior thereto and shall thereupon record in the Register the relevant
information with respect to each such Consenting Lender and each such Assuming
Lender. Each Non-Consenting Lender's rights under Sections 2.11, 2.14 and
9.04, and its obligatons under Section 8.05, shall survive such substitution
as to matters occurring prior to the date of substitution and each
Non-Consenting Lender's participation in outstanding Letters of Credit that
have not been drawn on or prior to the Termination Date applicable to such
Non-Consenting Lender shall terminate as of such date and each Issuing Bank
hereby agrees to the termination of such participation.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. CONDITIONS PRECEDENT TO EFFECTIVENESS OF
SECTIONS 2.01 AND 2.03. Sections 2.01 and 2.03 of this Agreement shall become
effective as of the first date (the "EFFECTIVE DATE") on which the following
conditions have been satisfied:
(a) The Agent shall have received counterparts of this
Agreement executed by the Company and the Lenders or, as to any of the
Lenders, advice satisfactory to the Agent that such Lender has executed
this Agreement.
(b) The Company shall have paid all accrued fees and expenses
of the Agent and the Lenders (including the invoiced accrued fees and
expenses of counsel to the Agent).
(c) On the Effective Date, the following statements shall be
true and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Company, dated
the Effective Date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(d) The Agent shall have received on or before the Effective
Date the following, each dated the Effective Date, in form and
substance satisfactory to the Agent and in sufficient copies for each
Lender:
(i) Certified copies of the resolutions of the Board
of Directors or the Finance Committee of the Board of
Directors of the Company approving this Agreement, and of all
documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this
Agreement.
29
(iii) A certificate of the Secretary or an Assistant
Secretary of the Company certifying the names and true
signatures of the officers of the Company authorized to sign
this Agreement and the other documents to be delivered by it
hereunder.
(iv) A favorable opinion of ▇▇▇▇▇▇▇▇ ▇. Camera,
General Counsel of the Company, and of Cleary, Gottlieb, ▇▇▇▇▇
& ▇▇▇▇▇▇▇▇, counsel for the Company, substantially in the form
of Exhibits D-2 and D-1 hereto, respectively.
(v) A favorable opinion of Shearman & Sterling,
counsel for the Agent, in form and substance satisfactory
to the Agent.
(e) The Company shall have terminated the commitments, and
paid in full all Debt, interest, fees and other amounts outstanding,
under the
364-Day Credit Agreement dated as of May 16, 2002, as
amended, among the Company, the lenders parties thereto and Citibank,
as agent, and each of the Lenders that is a party to such credit
facility hereby waives, upon execution of this Agreement, the three
Business Days' notice required by Section 2.05 of said Credit Agreement
relating to the termination of commitments thereunder.
SECTION 3.02. INITIAL ADVANCE TO EACH DESIGNATED SUBSIDIARY.
The obligation of each Lender to make an initial Advance to each Designated
Subsidiary is subject to the receipt by the Agent on or before the date of such
initial Advance of each of the following, in form and substance reasonably
satisfactory to the Agent and dated such date, and (except for the Notes) in
sufficient copies for each Lender:
(a) The Notes of such Designated Subsidiary to the order of
the Lenders to the extent requested by any Lender pursuant to Section
2.16.
(b) Certified copies of the resolutions of the Board of
Directors of such Designated Subsidiary (with a certified English
translation if the original thereof is not in English) approving this
Agreement and the Notes to be delivered by it, and of all documents
evidencing other necessary corporate action and governmental approvals,
if any, with respect to this Agreement.
(c) A certificate of a proper officer of such Designated
Subsidiary certifying the names and true signatures of the officers of
such Designated Subsidiary authorized to sign its Designation Agreement
and the Notes to be delivered by it and the other documents to be
delivered by it hereunder.
(d) A certificate signed by a duly authorized officer of the
Company, certifying that such Designated Subsidiary has obtained all
governmental and third party authorizations, consents, approvals
(including exchange control approvals) and licenses required under
applicable laws and regulations necessary for such Designated
Subsidiary to execute and deliver its Designation Agreement and the
Notes to be delivered by it and to perform its obligations hereunder
and thereunder.
(e) A Designation Agreement duly executed by such Designated
Subsidiary and the Company.
(f) Favorable opinions of counsel (which may be in-house
counsel) to such Designated Subsidiary substantially in the forms of
Exhibits D-1 and D-2 hereto, respectively, and as to such other matters
as any Lender through the Agent may request.
30
(g) Such other approvals, opinions or documents as any Lender,
through the Agent may reasonably request.
SECTION 3.03. CONDITIONS PRECEDENT TO EACH BORROWING,
EXTENSION DATE, TERM LOAN ELECTION AND ISSUANCE. The obligation of each Lender
to make an Advance (other than an Advance made by any Issuing Bank or any Lender
pursuant to Section 2.03(c)) on the occasion of each Revolving Credit Borrowing,
each extension of Commitments pursuant to Section 2.18, the giving of notice and
consummation of the Term Loan Election and the obligations of each Issuing Bank
to issue a Letter of Credit shall be subject to the conditions precedent that
the Effective Date shall have occurred and on the date of such Revolving Credit
Borrowing, the applicable Extension Date, the date of giving of notice of the
Term Loan Election, the Term Loan Conversion Date or such issuance (as the case
may be) the following statements shall be true (and each of the giving of the
applicable Notice of Revolving Credit Borrowing, request for Commitment
extension, notice of Term Loan Election, Notice of Issuance and the acceptance
by any Borrower of the proceeds of such Revolving Credit Borrowing shall
constitute a representation and warranty by such Borrower that on the date of
such Borrowing, such Extension Date, the date of notice of the Term Loan
election, the Term Loan Conversion Date or the date of such issuance, as the
case may be, such statements are true):
(a) the representations and warranties contained in Section
4.01 and in Section 5 of the Subsidiary Guaranty and, in the case of
any Borrowing made to a Designated Subsidiary, in the Designation
Agreement for such Designated Subsidiary, are correct on and as of such
date, before and after giving effect to such Borrowing, such Extension
Date, the Term Loan Conversion Date or such issuance (as the case may
be) and to the application by the applicable Borrower of the proceeds
therefrom, as though made on and as of such date, and
(b) no event has occurred and is continuing, or would result
from such Borrowing, such Extension Date, the Term Loan Conversion Date
or such issuance (as the case may be) or from the application by the
applicable Borrower of the proceeds therefrom, that constitutes a
Default.
SECTION 3.04. DETERMINATIONS UNDER SECTION 3.01 AND 3.02. For
purposes of determining compliance with the conditions specified in Sections
3.01 and 3.02, each Lender shall be deemed to have consented to, approved or
accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to
the Lenders unless an officer of the Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Lender prior
to the date that the Company, by notice to the Agent, designates as the proposed
Effective Date or the date of the initial Advance to the applicable Designated
Subsidiary, as the case may be, specifying its objection thereto. The Agent
shall promptly notify the Lenders of the occurrence of the Effective Date and
each date of initial Advance to a Designated Subsidiary, as applicable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants as follows:
(a) The Company is a corporation duly organized, incorporated,
validly existing and in good standing under the laws of the State of
Delaware, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on
its business.
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(b) The execution, delivery and performance by the Company of
this Agreement and the Notes to be delivered by it, and the
consummation of the transactions contemplated hereby, are within the
Company's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene, or constitute a default under,
any provision of applicable law or regulation or of the certificate of
incorporation of the Company or of any judgment, injunction, order,
decree, material agreement or other instrument binding upon the Company
or result in the creation or imposition of any Lien on any asset of the
Company or any of its Consolidated Subsidiaries.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery
and performance by the Company of this Agreement or the Notes to be
delivered by it.
(d) This Agreement has been, and each of the Notes to be
delivered by it when delivered hereunder will have been, duly executed
and delivered by the Company. This Agreement is, and each of the Notes
to be delivered by it when delivered hereunder will be, the legal,
valid and binding obligation of the Company enforceable against the
Company in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other
laws affecting the rights of creditors generally and subject to general
principles of equity.
(e) The Consolidated balance sheet of the Company and its
Consolidated Subsidiaries as at December 31, 2002, and the related
Consolidated statement of operations and cash flows of the Company and
its Consolidated Subsidiaries for the fiscal year then ended,
accompanied by an opinion of PricewaterhouseCoopers LLP, independent
public accountants, copies of which have been furnished to each Lender,
fairly present in all material respects the Consolidated financial
condition of the Company and its Consolidated Subsidiaries as at such
date and the Consolidated results of the operations and cash flows of
the Company and its Consolidated Subsidiaries for the period ended on
such date, all in accordance with generally accepted accounting
principles consistently applied. Since the Consolidated balance sheet
of the Company and its Consolidated Subsidiaries as at December 31,
2002, and except (x) as disclosed in the Company's reports filed with
the SEC since such date and prior to the Effective Date and (y) for the
impairment of the assets and other losses on sale of the Company's
Subsidiaries Brands Hatch Leisure Limited, Octagon Worldwide Limited
and Octagon Worldwide Inc. and their respective Subsidiaries, there has
been no Material Adverse Change.
(f) There is no action, suit, investigation, litigation or
proceeding pending against, or to the knowledge of the Company,
threatened against the Company or any of its Consolidated Subsidiaries
before any court or arbitrator or any governmental body, agency or
official in which there is a significant probability of an adverse
decision that (i) would have a Material Adverse Effect or (ii) purports
to affect the legality, validity or enforceability of this Agreement or
any Note or the consummation of the transactions contemplated hereby.
(g) Each of the Company and its ERISA Affiliates has fulfilled
its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in
all material respects with the presently applicable provisions of ERISA
and the Internal Revenue Code except when the failure to comply would
not have a Material Adverse Effect. None of the Company or any of its
ERISA Affiliates has incurred any unsatisfied material liability to the
PBGC or a Plan under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA.
32
(h) The Company is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System). Following the application of the proceeds of
each Advance, not more than 25% of the value of the property and assets
of the Company and its Consolidated Subsidiaries taken as a whole,
subject to the provisions of Section 5.02(a) or subject to any
restriction contained in any agreement or instrument between the
Company and any Lender or any Affiliate of any Lender relating to Debt
within the scope of Section 6.01(d) will be "margin stock" (within the
meaning of Regulation U of the Board of Governors of the Federal
Reserve System).
(i) The Company 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.
(j) The Company and its Consolidated Subsidiaries have filed
all United States Federal income tax returns and all other material tax
returns which are required to be filed by them and have paid all taxes
due reported on such returns or pursuant to any assessment received by
the Company or any Consolidated Subsidiary, to the extent that such
assessment has become due. The charges, accruals and reserves on the
books of the Company and its Consolidated Subsidiaries in respect of
taxes or other governmental charges are, in the opinion of the Company,
adequate except for those which are being contested in good faith by
the Company.
(k) Each of the Company's Consolidated Subsidiaries is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and has all powers and all material
governmental licenses, authorizations, consents and approvals required
to carry on its business, all to the extent material to the Company and
its Consolidated Subsidiaries taken as a whole.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Company will:
(a) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Consolidated Subsidiaries to comply, with all applicable laws, rules,
regulations and orders, such compliance to include, without limitation,
compliance with ERISA and applicable environmental laws, except where
the necessity of compliance is being contested in good faith or where
failure to comply would not have a Material Adverse Effect.
(b) PAYMENT OF TAXES, ETC. Pay and discharge, and cause each
of its Consolidated Subsidiaries to pay and discharge, before the same
shall become delinquent, (i) all taxes, assessments and governmental
charges or levies imposed upon it or upon its property and (ii) all
lawful claims that, if unpaid, might solely by operation of law become
a Lien upon its property; PROVIDED, HOWEVER, that neither the Company
nor any of its Consolidated Subsidiaries shall be required to pay or
discharge any such tax, assessment, levy, charge or claim that is being
contested in good faith and by proper proceedings and as to which
appropriate reserves in accordance with generally accepted accounting
principles are being maintained, unless and until any Lien resulting
therefrom attaches to its property and becomes enforceable against its
other creditors.
33
(c) MAINTENANCE OF INSURANCE. Maintain, and cause each of its
Consolidated Subsidiaries to maintain, all to the extent material to
the Company and its Consolidated Subsidiaries taken as a whole, with
responsible and reputable insurance companies or associations, physical
damage insurance on all real and personal property on an all risks
basis, covering the repair and replacement cost of all such property
and consequential loss coverage for business interruption and extra
expense, public liability insurance in an amount not less than
$25,000,000 and such other insurance covering such other risks as is
customarily carried by companies of established reputations engaged in
similar businesses and owning similar properties in the same general
areas in which the Company or such Consolidated Subsidiary operates;
PROVIDED, HOWEVER, that the Company and its Consolidated Subsidiaries
may self-insure to the same extent as other companies engaged in
similar businesses and owning similar properties in the same general
areas in which the Company or such Consolidated Subsidiary operates and
to the extent consistent with prudent business practice.
(d) PRESERVATION OF EXISTENCE, ETC. Preserve and maintain, and
cause each of its Consolidated Subsidiaries to preserve and maintain,
its existence, rights (constituent document and statutory) and
franchises necessary in the normal conduct of its business, all to the
extent material to the Company and its Consolidated Subsidiaries taken
as a whole; PROVIDED, HOWEVER, that the Company and its Consolidated
Subsidiaries may consummate any merger or consolidation permitted under
Section 5.02(b) and PROVIDED FURTHER that neither the Company nor any
of its Consolidated Subsidiaries shall be required to preserve any
right or franchise if the Board of Directors of the Company or such
Consolidated Subsidiary shall determine that the preservation thereof
is no longer desirable in the normal conduct of the business of the
Company or such Consolidated Subsidiary, as the case may be, and that
the loss thereof is not material to the Company and its Consolidated
Subsidiaries taken as a whole.
(e) VISITATION RIGHTS. At any reasonable time and from time to
time, permit the Agent or any of the Lenders or any agents or
representatives thereof at their own expense, to examine and make
copies of and abstracts from the records and books of account of, and
visit the properties of, the Company and any of its Consolidated
Subsidiaries, and to discuss the affairs, finances and accounts of the
Company and any of its Consolidated Subsidiaries with any of their
officers and with their independent certified public accountants, all
as often as may reasonably be necessary to ensure compliance by the
Company with its obligations hereunder.
(f) KEEPING OF BOOKS. Keep, and cause each of its Consolidated
Subsidiaries to keep, proper books of record and account, in which full
and correct entries shall be made of all financial transactions and the
assets and business of the Company and each such Consolidated
Subsidiary in accordance with sound business practices and applicable
statutory requirements so as to permit the preparation of the
Consolidated financial statements of the Company and its Consolidated
Subsidiaries in accordance with generally accepted accounting
principles in effect from time to time.
(g) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve, and
cause each of its Consolidated Subsidiaries to maintain and preserve,
all of its properties that are used and useful in the conduct of its
business in good working order and condition, ordinary wear and tear
excepted, except where the failure to do so would not have a Material
Adverse Effect.
(h) REPORTING REQUIREMENTS. Furnish to the Lenders or notify
the Lenders of the availability of:
34
(i) as soon as available and in any event within 50
days after the end of each of the first three quarters of each
fiscal year of the Company, the unaudited Consolidated balance
sheet of the Company and its Consolidated Subsidiaries as of
the end of such quarter and unaudited Consolidated statement
of operations and cash flows of the Company and its
Consolidated Subsidiaries for the period commencing at the end
of the previous fiscal year and ending with the end of such
quarter, duly certified (except for the absence of footnotes
and subject to year-end audit adjustments) by the chief
financial officer of the Company as having been prepared in
accordance with generally accepted accounting principles and a
certificate of the chief financial officer, chief accounting
officer or treasurer of the Company, which certificate shall
include a statement that such officer has no knowledge, except
as specifically stated, of any condition, event or act which
constitutes a Default and setting forth in reasonable detail
the calculations necessary to demonstrate compliance with
Section 5.03 on the date of such balance sheet, PROVIDED that
in the event that generally accepted accounting principles
used in the preparation of such financial statements shall
differ from GAAP, the Company shall also provide, if necessary
for the determination of compliance with Section 5.03, a
statement of reconciliation conforming such financial
statements to GAAP;
(ii) as soon as available and in any event within 95
days after the end of each fiscal year of the Company, a copy
of the audited financial statements for such year for the
Company and its Consolidated Subsidiaries, containing the
Consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of the end of such fiscal year and
Consolidated statement of operations and cash flows of the
Company and its Consolidated Subsidiaries for such fiscal
year, in each case accompanied by the report thereon of
PricewaterhouseCoopers LLP or other independent public
accountants of nationally recognized standing, together with a
certificate of the chief financial officer, chief accounting
officer or treasurer of the Company, which certificate shall
include a statement that such officer has no knowledge, except
as specifically stated, of any condition, event or act which
constitutes a Default and setting forth in reasonable detail
the calculations necessary to demonstrate compliance with
Section 5.03 on the date of such financial statements,
PROVIDED that in the event that generally accepted accounting
principles used in the preparation of such financial
statements shall differ from GAAP, the Company shall also
provide, if necessary for the determination of compliance with
Section 5.03, a statement of reconciliation conforming such
financial statements to GAAP;
(iii) as soon as possible and in any event within ten
days after the chief executive officer, chief operation
officer, principal financial officer or principal accounting
officer of the Company knows or has reason to know of the
occurrence of each Default continuing on the date of such
statement, a statement of such officer of the Company setting
forth details of such Default and the action that the Company
has taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof,
copies of all quarterly and annual reports and proxy
solicitations that the Company sends to any of its
securityholders, and copies of all reports on form 8-K and
registration statements for the public offering of securities
(other than pursuant to employee Plans) that the Company or
any Consolidated Subsidiary files with the Securities and
Exchange Commission;
(v) promptly after the commencement thereof, notice
of all actions and proceedings before any court, governmental
agency or arbitrator affecting the Company or any of its
Consolidated Subsidiaries of the type described in Section
4.01(f); and
35
(vi) such other information respecting the financial
condition or business of the Company or any of its
Consolidated Subsidiaries as any Lender through the Agent may
from time to time reasonably request.
The financial statements required to be delivered pursuant to clauses
(i) and (ii) and the reports required to be delivered pursuant to
clause (iv) of this Section 5.01(h) shall be deemed to have been
delivered on the date on which the Company notifies the Agent, in the
case of clauses (i) and (ii), that the reports on Form 10-K and Form
10-Q, respectively, containing such financial statements and, in the
case of clause (iv), that such reports have been posted on the SEC's
website at ▇▇▇.▇▇▇.▇▇▇; PROVIDED that the Company shall deliver paper
copies of the reports (without the exhibits thereto) referred to in
clauses (i), (ii) and (iv) of this Section 5.01(h) to the Agent or any
Lender who requests the Company to deliver such paper copies until
written notice to cease delivering paper copies is given by the Agent
or such Lender and PROVIDED, FURTHER, that in every instance the
Company shall provide paper copies of the certificates required to be
delivered in accordance with this Section 5.01(h) until such time as
the Agent shall provide the Company notice otherwise.
(i) SUBSIDIARY GUARANTY. Deliver to the Agent not later than
August 29, 2003, in sufficient copies for each Lender:
(i) Certified copies of the resolutions of the Board
of Directors of each Subsidiary Guarantor approving the
Subsidiary Guaranty, and of all documents evidencing other
necessary corporate action and governmental approvals, if any,
with respect to the Subsidiary Guaranty.
(ii) A certificate of the Secretary or an Assistant
Secretary of each Subsidiary Guarantor certifying the names
and true signatures of the officers of such Subsidiary
Guarantor authorized to sign the Subsidiary Guaranty and the
other documents to be delivered by it hereunder.
(iii) A guaranty in substantially the form of Exhibit
F hereto (as amended, supplemented or otherwise modified from
time to time, the "SUBSIDIARY GUARANTY"), duly executed by
each Subsidiary Guarantor.
(iv) Favorable opinions of outside and in-house
counsel for each of the Subsidiary Guarantors, substantially
in the forms of Exhibits G-1 and G-2 hereto, respectively.
(j) NEW MATERIAL SUBSIDIARIES. Promptly and in any event
within 30 days following the request of the Required Lenders made after the
delivery of audited annual financial statements pursuant to Section 5.01(h) that
indicate that a Subsidiary of the Company that is not at such time a Subsidiary
Guarantor is a Material Subsidiary, cause such Material Subsidiary to execute
and deliver an Accession Agreement (as defined in the Subsidiary Guaranty),
together with the documents set forth in clause 5.01(i)(i), (ii) and (iv).
SECTION 5.02. NEGATIVE COVENANTS. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will not:
(a) LIENS, ETC. Create or suffer to exist, or permit any of
its Consolidated Subsidiaries to create or suffer to exist, any Lien on
or with respect to any of its assets, whether now owned or hereafter
acquired, other than:
(i) Liens existing on the date hereof;
36
(ii) any Lien existing on any asset of any
corporation at the time such corporation becomes a
Consolidated Subsidiary and not created in contemplation of
such event;
(iii) any Lien on any asset securing Debt incurred or
assumed for the purpose of financing all or any part of the
cost of acquiring such asset, PROVIDED that such Lien attaches
to such asset concurrently with or within 90 days after the
acquisition thereof;
(iv) any Lien on any asset of any corporation
existing at the time such corporation is merged into or
consolidated with the Company or a Consolidated Subsidiary and
not created in contemplation of such event;
(v) any Lien existing on any asset prior to the
acquisition thereof by the Company or a Consolidated
Subsidiary and not created in contemplation of such
acquisition;
(vi) any Lien created in connection with capitalized
lease obligations, but only to the extent that such Lien
encumbers property financed by such capital lease obligation
and the principal component of such capitalized lease
obligation is not increased;
(vii) Liens arising in the ordinary course of its
business which (A) do not secure Debt and (B) do not in the
aggregate materially impair the operation of the business of
the Company and its Consolidated Subsidiaries, taken as a
whole;
(viii) any Lien arising out of the refinancing,
extension, renewal or refunding of any Debt secured by any
Lien permitted by any of the foregoing clauses of this
Section, provided that such Debt is not increased and is not
secured by any additional assets;
(ix) Liens securing taxes, assessments, fees or other
governmental charges or levies, Liens securing the claims of
materialmen, mechanics, carriers, landlords, warehousemen and
similar Persons, Liens incurred in the ordinary course of
business in connection with workmen's compensation,
unemployment insurance and other similar laws, Liens to secure
surety, appeal and performance bonds and other similar
obligations not incurred in connection with the borrowing of
money, and attachment, judgment and other similar Liens
arising in connection with court proceedings so long as the
enforcement of such Liens is effectively stayed and the claims
secured thereby are being contested in good faith by
appropriate proceedings;
(x) any Liens on property arising in connection with
a securities repurchase transaction;
(xi) any contractual right of set-off or any
contractual right to charge or contractual security interest
in or Lien on the accounts of the Company or any of its
Consolidated Subsidiaries to effect the payment of amounts to
such depositary institution whether or not due and payable in
respect of any Debt or financing arrangement and any other
Lien arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or
similar rights;
(xii) any Liens on assets of Subsidiaries organized
outside of the United States in favor of lenders under
short-term working capital lines of credit entered into in the
ordinary course of business;
37
(xiii) Liens arising in the ordinary course of
banking transactions and securing Debt in an aggregate amount
of not more than $15,000,000 that matures not more than one
year after the date on which it is originally incurred;
(xiv) any Lien arising out of the L/C Cash Deposit
Account; and
(xv) Liens not otherwise permitted by the foregoing
clauses of this Section securing Debt in an aggregate
principal amount at any time outstanding not to exceed 5% of
the Consolidated net worth of the Company and its Consolidated
Subsidiaries.
(b) MERGERS, ETC. (i) Merge or consolidate with or into any
Person (other than a Consolidated Subsidiary of the Company) except
that the Company may agree to merge or consolidate any Consolidated
Subsidiary with any Person in connection with an acquisition of such
Person, (ii) sell, lease or otherwise transfer (whether in one
transaction or a series of transactions) all or substantially all of
the Company's business or assets (whether now owned or hereafter
acquired) to any Person (other than a Consolidated Subsidiary of the
Company) or (iii) except for the sale of NFO Worldwide, Inc., Brands
Hatch Leisure Limited, Octagon Worldwide Limited and Octagon Worldwide
Inc. and their respective Subsidiaries or their assets, permit any
Consolidated Subsidiary to merge or consolidate with or into or
transfer (whether in one transaction or a series of transactions) all
or any substantial part of its assets (whether now owned or hereafter
acquired) to any Person except (x) the Company or another Consolidated
Subsidiary of the Company or to any other Person if the Board of
Directors of the Company (or the finance committee or an officer of the
Company duly authorized for such purpose) determines in good faith that
the Consolidated Subsidiary or the assets of such Consolidated
Subsidiary, as the case may be, are not material to the Company and its
Consolidated Subsidiaries taken as a whole, and (y) any Consolidated
Subsidiary may merge with or consolidate into any Person in connection
with an acquisition of such Person, PROVIDED, in each case, that no
Default shall have occurred and be continuing at the time of such
proposed transaction or would result therefrom.
(c) ACCOUNTING CHANGES. Make or permit, or permit any of its
Consolidated Subsidiaries to make or permit, any change in accounting
policies or reporting practices, except as required or permitted by
generally accepted accounting principles or applicable statutory
requirements.
(d) CHANGE IN NATURE OF BUSINESS. Engage, or permit any
Consolidated Subsidiary to engage, predominantly in any business other
than business of the same general type as conducted on the date hereof
by the Company and its Consolidated Subsidiaries.
(e) AMENDMENTS, ETC. OF OTHER AGREEMENTS. Amend, modify or
change in any manner any of the Company's five Note Purchase Agreements
with The Prudential Insurance Company of America or any other long-term
Debt of the Company, in each case to (i) amend any of the covenants
therein in a manner that results in covenants more restrictive than
those contained in such agreements or instruments as of December 31,
2002 (unless the same covenants in this Agreement, if any, are
similarly amended), (ii) until the Public Debt Ratings are at least BBB
from S&P and Baa2 from ▇▇▇▇▇'▇ (and, if such ratings are BBB and Baa2,
respectively, they are not the subject of a credit watch with negative
outlook), include any new covenant therein that is not contained in
such agreements or instruments as of December 31, 2002 (unless the same
new covenant is included in this Agreement with terms no more
restrictive than those of such new covenant in any such agreement or
instrument) or (iii) amend any such agreement or instrument to shorten
the maturity or amortization thereof to a date prior to July 31, 2005.
38
(f) ACQUISITIONS. Except as set forth on Schedule 5.02(f) and
except for required payments, or optional payments made in lieu of
required payments when in the best interest of the Company (as
determined in good faith by the appropriate officers of the Company),
pursuant to agreements relating to such purchases and acquisitions
entered into prior to January 31, 2003, purchase or otherwise acquire
all or substantially all of the assets, or a business unit or division,
of any Person except to the extent that (i) the consideration of such
purchase or acquisition consists solely of capital stock of the Company
or (ii) the cash consideration of all such purchases and acquisitions
shall not exceed $100,000,000 in the aggregate for any calendar year;
PROVIDED that, if for any calendar year, the cash amount permitted
above for such calendar year exceeds the aggregate cash consideration
of such purchases and acquisitions for such calendar year, the Company
and its Subsidiaries shall be permitted to make cash payments in
respect of purchases and acquisitions in the immediately succeeding
calendar year, in addition to the cash amounts permitted above for such
succeeding calendar year, equal to the amount of such excess.
(g) RESTRICTED PAYMENTS. Declare or pay any dividends,
purchase, redeem, retire, defease or otherwise acquire for value any
shares of its common stock now or hereafter outstanding, return any
capital to its stockholders as such, or make any distribution of
assets, equity interests, obligations or securities to its stockholders
as such (any of the foregoing, a "RESTRICTED PAYMENT"), except that, so
long as no Default shall have occurred and be continuing at the time of
any action described in clause (i), (ii), (iii), (iv) or (v) below or
would result therefrom, the Company may (i) declare and pay dividends
and distributions payable only in common stock of the Company, (ii)
purchase, redeem, retire, defease or otherwise acquire shares of its
capital stock (A) with the proceeds received contemporaneously from the
issue of new shares of its capital stock with equal or inferior voting
powers, designations, preferences and rights or (B) in connection with
the exercise of options by the employees of the Company or its
Subsidiaries, (iii) issue preferred stock (or the right to purchase
preferred stock) of the Company in connection with a stockholders'
rights plan, (iv) make Restricted Payments in an aggregate amount of
not more than $25,000,000 in any calendar year and (v) from and after
the date EBITDA for the four fiscal quarters most recently ended is at
least (A) $1,000,000,000, make Restricted Payments in an aggregate
amount of not more than $100,000,000 in any calendar year, (B)
$1,200,000,000, make Restricted Payments in an aggregate amount of not
more than $150,000,000 in any calendar year or (C) $1,300,000,000, make
any Restricted Payments without limitation.
(h) CAPITAL EXPENDITURES. Make, or permit any of its
Consolidated Subsidiaries to make, any Capital Expenditures that would
cause the aggregate of all such Capital Expenditures made by the
Company and its Consolidated Subsidiaries to exceed $175,000,000 in any
calendar year; PROVIDED that, if for any calendar year, the amount
permitted above for such calendar year exceeds the Capital Expenditures
made in such year, the Company and its Consolidated Subsidiaries shall
be entitled to make Capital Expenditures in the immediately succeeding
calendar year in an amount equal to the sum of (i) $175,000,000 and
(ii) the lesser of (A) such excess and (B) $40,000,000. For purposes of
this subsection, "CAPITAL EXPENDITURES" means, for any period, the sum
of, without duplication, (x) all expenditures made, directly or
indirectly, during such period for equipment, fixed assets, real
property or improvements, or for replacements or substitutions therefor
or additions thereto, that have been or should be, in accordance with
GAAP, reflected as additions to property, plant or equipment on a
Consolidated balance sheet of a Person or have a useful life of more
than one year plus (y) the aggregate principal amount of all Debt
(including obligations under capitalized leases) assumed or incurred in
connection with any such expenditures.
(i) SUBSIDIARY DEBT. Permit any of its Consolidated
Subsidiaries to create or suffer to exist, any Debt other than (without
duplication):
(i) Debt owed to the Company or to a Consolidated
Subsidiary of the Company,
39
(ii) Debt existing on the Effective Date and
described on Schedule 5.02(i) hereto (the "EXISTING DEBT"),
and any Debt extending the maturity of, or refunding or
refinancing, in whole or in part, the Existing Debt, PROVIDED
that the principal amount of such Existing Debt shall not be
increased above the principal amount thereof outstanding
immediately prior to such extension, refunding or refinancing,
and the direct and contingent obligors therefor shall not be
changed, as a result of or in connection with such extension,
refunding or refinancing,
(iii) Debt secured by Liens permitted by
Section 5.02(a),
(iv) unsecured Debt incurred in the ordinary
course of business of the Company's Consolidated Subsidiaries
organized outside the United States,
(v) book overdraft amounts outstanding at any
time, and
(vi) unsecured Debt incurred in the ordinary course
of business of the Company's Consolidated Subsidiaries
organized in the United States in an aggregate amount at any
time outstanding of not more than $25,000,000;
PROVIDED, that the foregoing limitations shall not be effective as to
any such Subsidiary that is a party to the Subsidiary Guaranty.
SECTION 5.03. FINANCIAL COVENANTS. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Company will:
(a) INTEREST COVERAGE RATIO. Maintain, as of the end of each
fiscal quarter, a ratio of (i) Consolidated EBITDA of the Company and
its Consolidated Subsidiaries for the four fiscal quarters then ended
to (ii) Interest Expense during such period by the Company and its
Consolidated Subsidiaries, of not less than (x) 3.5 to 1 for each
period ended on or prior to June 30, 2003 and (y) 3.75 to 1 for each
period ended on or after September 30, 2003.
(b) DEBT TO EBITDA RATIO. Maintain, as of the end of each
fiscal quarter referenced below, a ratio of (i) Debt for Borrowed Money
as of the end of such fiscal quarter to (ii) Consolidated EBITDA of the
Company and its Consolidated Subsidiaries for the four quarters then
ended, of not greater than the ratio set forth opposite such fiscal
quarter below:
-------------------------------------------------------- --------------------------
FISCAL QUARTER ENDING RATIO
-------------------------------------------------------- --------------------------
March 31, 2003 4.00 to 1
-------------------------------------------------------- --------------------------
June 30, 2003 4.50 to 1
-------------------------------------------------------- --------------------------
September 30, 2003 3.75 to 1
-------------------------------------------------------- --------------------------
December 31, 2003 3.50 to 1
-------------------------------------------------------- --------------------------
March 31, 2004 3.50 to 1
-------------------------------------------------------- --------------------------
June 30, 2004 and thereafter 3.25 to 1
-------------------------------------------------------- --------------------------
40
; PROVIDED that, for purposes of determining Debt for Borrowed Money
for the fiscal quarter ended March 31, 2003, Debt evidenced by the
Company's Zero-Coupon Convertible Senior Notes due 2021 shall be
excluded.
(c) MINIMUM EBITDA. Maintain, as of the end of each fiscal
quarter referenced below, Consolidated EBITDA of the Company and its
Consolidated Subsidiaries for the four quarters then ended of not less
than the amount set forth opposite such fiscal quarter below:
-------------------------------------------------------- --------------------------
FISCAL QUARTER ENDING AMOUNT
-------------------------------------------------------- --------------------------
March 31, 2003 $700,000,000
-------------------------------------------------------- --------------------------
June 30, 2003 $625,000,000
-------------------------------------------------------- --------------------------
September 30, 2003 $675,000,000
-------------------------------------------------------- --------------------------
December 31, 2003 and thereafter $750,000,000
-------------------------------------------------------- --------------------------
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 Company or any other Borrower shall fail to pay any
principal of any Advance when the same becomes due and payable; or the
Company or any other Borrower shall fail to pay any interest on any
Advance or make any other payment of fees or other amounts payable
under this Agreement or any Note within five Business Days after the
same becomes due and payable; or
(b) Any representation or warranty made by the Company, any
Designated Subsidiary or any Subsidiary Guarantor (or any of its
officers) in any certificate, financial statement or other document
delivered pursuant to this Agreement shall prove to have been incorrect
in any material respect when made; or
(c) (i) The Company shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(e) or (h), 5.02 (other
than subsection (c) thereof) or 5.03; (ii) the Company or any other
Borrower shall fail to perform or observe any term, covenant or
agreement contained in Section 5.01(d) if such failure shall remain
unremedied for 10 days after written notice thereof shall have been
given to the Company by the Agent or any Lender; or (iii) the Company,
any other Borrower or any Subsidiary Guarantor shall fail to perform or
observe any other term, covenant or agreement contained in this
Agreement or any other Loan Document on its part to be performed or
observed if such failure shall remain unremedied for 30 days after
written notice thereof shall have been given to the Company by the
Agent or any Lender; or
(d) The Company or any of its Consolidated Subsidiaries shall
fail to pay any principal of or premium or interest on any Debt (but
excluding Debt outstanding hereunder and Debt owed solely to the
Company or to a Consolidated Subsidiary) of the Company or such
Consolidated Subsidiary (as the case
41
may be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument creating or evidencing such
Debt; or the Company or any of its Consolidated Subsidiaries shall
fail to perform or observe any covenant or agreement to be performed
or observed by it in any agreement or instrument creating or
evidencing any such Debt and such failure shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such failure is to accelerate, or to
permit the acceleration of, the maturity of such Debt; or any other
event shall occur or condition shall exist under any agreement or
instrument creating or evidencing any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement
or instrument (and remain uncured three Business Days after the chief
financial officer, chief operation officer, principal financial
officer or principal accounting officer of the Company becomes aware
or should have become aware of such event or condition), if the effect
of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Debt; or any such Debt shall be
declared to be due and payable, or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each
case prior to the stated maturity thereof; PROVIDED that the aggregate
principal amount (or, in the case of any payment default, failure or
other event in respect of a Hedge Agreement, the net amount due and
payable under such Hedge Agreement as of the date of such payment
default, failure or event) of all Debt as to which any such payment
defaults (whether or not at stated maturity thereof), failures or
other events shall have occurred and be continuing exceeds
$10,000,000, PROVIDED, FURTHER, that if any of the actions or events
set forth above in this subsection (d) shall be taken in respect of,
or occur with respect to, a Consolidated Subsidiary, such action or
event shall not be the basis for or give rise to an Event of Default
under this subsection (d) until five Business Days after the chief
executive officer, chief operation officer, principal financial
officer or principal accounting officer of the Company knows or has
reason to know of the occurrence of such action or event; or
(e) The Company or any of its Consolidated Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Company or any of its
Consolidated Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order
for relief or the appointment of a receiver, trustee, custodian or
other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain
undismissed or unstayed for a period of 60 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part
of its property) shall occur; or the Company or any of its Consolidated
Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (e); PROVIDED, that if any
of the actions or events set forth above in this subsection (e) shall
be taken in respect of, or occur with respect to, a Consolidated
Subsidiary, such action or event shall not be the basis for or give
rise to an Event of Default under this subsection (e) if (x) the assets
or revenues of such Consolidated Subsidiary and its Consolidated
Subsidiaries, taken as a whole, comprise 5% or less of the assets or
revenues, respectively, of the Company and its Consolidated
Subsidiaries, taken as a whole, and (y) the aggregate assets and
revenues of all Consolidated Subsidiaries otherwise subject to such
actions or events set forth above do not comprise more than 15% of the
assets or revenues, respectively, of the Company and its Consolidated
Subsidiaries taken as a whole; or
42
(f) Judgments or orders for the payment of money in excess of
$10,000,000 in the aggregate shall be rendered against the Company or
any of its Consolidated Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 60 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
(g) (i) Any Person or two or more Persons acting in concert
(other than the Company or a Consolidated Subsidiary) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934), directly or indirectly, of Voting Stock of the Company (or other
securities convertible into such Voting Stock) representing 30% or more
of the combined voting power of all Voting Stock of the Company; or
(ii) during any period of up to 24 consecutive months, commencing after
the date of this Agreement, individuals who at the beginning of such
period were directors of the Company shall cease for any reason to
constitute a majority of the board of directors of the Company unless
the election or nomination for election by the Company's stockholders
of each new director was approved by the vote of at least two-thirds of
the directors then still in office who were directors at the beginning
of such period; or
(h) The Company or any of its ERISA Affiliates shall incur
liability, or in the case of clause (i) below, shall be reasonably
likely to incur liability, in excess of $10,000,000 in the aggregate as
a result of one or more of the following: (i) the occurrence of any
ERISA Event; (ii) the partial or complete withdrawal of the Company or
any of its ERISA Affiliates from a Multiemployer Plan; or (iii) the
reorganization or termination of a Multiemployer Plan; or
(i) so long as any Consolidated Subsidiary of the Company is a
Designated Subsidiary, any provision of Article VII shall for any
reason cease to be valid and binding on or enforceable against the
Company, or the Company shall so state in writing; or
(j) the Subsidiary Guaranty shall for any reason cease to be
valid and binding on or enforceable against each Subsidiary Guarantor
(other than by reason of a release of a Subsidiary Guarantor in
accordance with the terms of the Subsidiary Guaranty), or any
Subsidiary Guarantor shall so state in writing;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Company and the other
Borrowers, declare the obligation of each Lender to make Advances (other than
Advances by an Issuing Bank or a Lender pursuant to Section 2.03(c)) and of the
Issuing Banks to issue Letters of Credit to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Company and the other
Borrowers, declare the Advances, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the
Advances, 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 each Borrower; PROVIDED,
HOWEVER, that in the event of an actual or deemed entry of an order for relief
with respect to any Borrower under the Federal Bankruptcy Code, (A) the
obligation of each Lender to make Advances (other than Advances by an Issuing
Bank or a Lender pursuant to Section 2.03(c)) and of the Issuing Banks to issue
Letters of Credit shall automatically be terminated and (B) the Advances, 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 each Borrower.
SECTION 6.02. ACTIONS IN RESPECT OF THE LETTERS OF CREDIT UPON
DEFAULT. If any Event of Default shall have occurred and be continuing, the
Agent may with the consent, or shall at the request, of the Required
43
Lenders, irrespective of whether it is taking any of the actions described in
Section 6.01 or otherwise, make demand upon the Company to, and forthwith upon
such demand the Company will, (a) pay to the Agent on behalf of the Lenders in
same day funds at the Agent's office designated in such demand, for deposit in
the L/C Cash Deposit Account, an amount equal to the aggregate Available Amount
of all Letters of Credit then outstanding or (b) make such other reasonable
arrangements in respect of the outstanding Letters of Credit as shall be
acceptable to the Required Lenders. If at any time the Agent reasonably
determines that any funds held in the L/C Cash Deposit Account are subject to
any right or interest of any Person other than the Agent and the Lenders or that
the total amount of such funds is less than the aggregate Available Amount of
all Letters of Credit, the Borrowers will, forthwith upon demand by the Agent,
pay to the Agent, as additional funds to be deposited and held in the L/C Cash
Deposit Account, an amount equal to the excess of (a) such aggregate Available
Amount over (b) the total amount of funds, if any, then held in the L/C Cash
Deposit Account that are free and clear of any such right and interest. Upon the
drawing of any Letter of Credit, to the extent funds are on deposit in the L/C
Cash Deposit Account, such funds shall be applied to reimburse the Issuing Banks
to the extent permitted by applicable law, and if so applied, then such
reimbursement shall be deemed a repayment of the corresponding Advance in
respect of such Letter of Credit. After all such Letters of Credit shall have
expired or been fully drawn upon and all other obligations of the Borrowers
hereunder and under the Notes shall have been paid in full, the balance, if any,
in such L/C Cash Deposit Account shall be promptly returned to the Company.
ARTICLE VII
GUARANTY
SECTION 7.01. GUARANTY. The Company hereby absolutely,
unconditionally and irrevocably guarantees, as a guarantee of payment and not of
collection, the punctual payment when due, whether at scheduled maturity or on
any date of a required prepayment or by acceleration, demand or otherwise, of
all obligations of each other Borrower now or hereafter existing under or in
respect of this Agreement and the Notes (including, without limitation, any
extensions, modifications, substitutions, amendments or renewals of any or all
of the foregoing obligations), whether direct or indirect, absolute or
contingent, and whether for principal, interest, premiums, fees, indemnities,
contract causes of action, costs, expenses or otherwise (such obligations being
the "GUARANTEED OBLIGATIONS"), and agrees to pay any and all expenses
(including, without limitation, fees and expenses of counsel) incurred by the
Agent or any other Lender in enforcing any rights under this Article VII.
Without limiting the generality of the foregoing, the Company's liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and
would be owed by any such Borrower to the Agent or any Lender under or in
respect of this Agreement or the Notes but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such Borrower.
SECTION 7.02. GUARANTY ABSOLUTE. The Company guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the Notes, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Lender with respect thereto. The obligations of the Company under
or in respect of this Article VII are independent of the Guaranteed Obligations
or any other obligations of any other Borrower under or in respect of this
Agreement and the Notes, and a separate action or actions may be brought and
prosecuted against the Company to enforce this Article VII, irrespective of
whether any action is brought against any Borrower or whether any Borrower is
joined in any such action or actions. The liability of the Company under this
Article VII shall be irrevocable, absolute and unconditional irrespective of,
and the Company hereby irrevocably waives any defenses it may now have or
hereafter acquire in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement
(other than this Article VII), the Notes or any agreement or instrument
relating thereto;
44
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations or any
other obligations of any Borrower under or in respect of this Agreement
or the Notes, or any other amendment or waiver of or any consent to
departure from this Agreement or the Notes, including, without
limitation, any increase in the Guaranteed Obligations resulting from
the extension of additional credit to any Borrower or any of its
Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of, or
consent to departure from, any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any manner of application of collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Guaranteed Obligations or any other obligations of any Borrower under
this Agreement or the Notes or any other assets of any Borrower or any
of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Borrower or any of its Subsidiaries;
(f) any failure of any Lender or the Agent to disclose to the
Company any information relating to the business, condition (financial
or otherwise), operations, performance, properties or prospects of any
Borrower now or hereafter known to such Lender or the Agent (the
Company waiving any duty on the part of the Lenders and the Agent to
disclose such information); or
(g) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by any Lender or the Agent that might otherwise
constitute a defense available to, or a discharge of, any Borrower or
any other guarantor or surety.
This Article VII shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by any Lender or the Agent or any other
Person upon the insolvency, bankruptcy or reorganization of any Borrower or
otherwise, all as though such payment had not been made.
SECTION 7.03. WAIVERS AND ACKNOWLEDGMENTS. (a) The Company
hereby unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Article VII and any requirement that
any Lender or the Agent protect, secure, perfect or insure any Lien or any
property subject thereto or exhaust any right or take any action against any
Borrower or any other Person or any collateral.
(b) The Company hereby unconditionally and irrevocably waives
any right to revoke this Article VII and acknowledges that the guaranty under
this Article VII is continuing in nature and applies to all Guaranteed
Obligations, whether existing now or in the future.
(c) The Company hereby unconditionally and irrevocably waives
(i) any defense arising by reason of any claim or defense based upon an election
of remedies by any Lender or the Agent that in any manner impairs, reduces,
releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of the Company or other
rights of the Company to proceed against any Borrower, any other guarantor or
any other Person or any collateral and (ii) any defense based on any right of
set-off or counterclaim against or in respect of the obligations of the Company
hereunder.
45
(d) The Company hereby unconditionally and irrevocably waives
any duty on the part of any Lender or the Agent to disclose to the Company any
matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any Borrower or
any of its Subsidiaries now or hereafter known by such Lender or the Agent.
(e) The Company acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by
this Agreement and the Notes and that the waivers set forth in Section 7.02 and
this Section 7.03 are knowingly made in contemplation of such benefits.
SECTION 7.04. SUBROGATION. The Company hereby unconditionally
and irrevocably agrees not to exercise any rights that it may now have or
hereafter acquire against any Borrower or any other insider guarantor that arise
from the existence, payment, performance or enforcement of the Company's
Obligations under or in respect of this Article VII, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution
or indemnification and any right to participate in any claim or remedy of any
Lender or the Agent against any Borrower or any other insider guarantor or any
collateral, whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, including, without limitation, the right to
take or receive from any Borrower or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Article VII shall have been paid in full in cash and the Commitments shall have
expired or been terminated. If any amount shall be paid to the Company in
violation of the immediately preceding sentence at any time prior to the later
of (a) the payment in full in cash of the Guaranteed Obligations and all other
amounts payable under this Article VII and (b) the Termination Date, such amount
shall be received and held in trust for the benefit of the Lenders and the
Agent, shall be segregated from other property and funds of the Company and
shall forthwith be paid or delivered to the Agent in the same form as so
received (with any necessary endorsement or assignment) to be credited and
applied to the Guaranteed Obligations and all other amounts payable under this
Article VII, whether matured or unmatured, in accordance with the terms of this
Agreement, or to be held as collateral for any Guaranteed Obligations or other
amounts payable under this Article VII thereafter arising. If (i) the Company
shall make payment to any Lender or the Agent of all or any part of the
Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Article VII shall have been paid in full in cash and
(iii) the Termination Date shall have occurred, the Lenders and the Agent will,
at the Company's request and expense, execute and deliver to the Company
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to the Company of an interest
in the Guaranteed Obligations resulting from such payment made by the Company
pursuant to this Article VII.
SECTION 7.05. CONTINUING GUARANTY; ASSIGNMENTS. The guaranty
under this Article VII is a continuing guaranty and shall (a) remain in full
force and effect until the later of (i) the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Article VII and
(ii) the Termination Date, (b) be binding upon the Company, its successors and
assigns and (c) inure to the benefit of and be enforceable by the Lenders and
the Agent and their successors, transferees and assigns. Without limiting the
generality of clause (c) of the immediately preceding sentence, any Lender may
assign or otherwise transfer all or any portion of its rights and obligations
under this Agreement (including, without limitation, all or any portion of its
Commitments, the Advances owing to it and the Note or Notes held by it) to any
other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Lender herein or otherwise, in each
case as and to the extent provided in Section 9.07. The Company shall not have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.
46
ARTICLE VIII
THE AGENT
SECTION 8.01. AUTHORIZATION AND ACTION. Each Lender (in its
capacities as a Lender and Issuing Bank, as applicable) hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion 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 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 Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; PROVIDED, HOWEVER, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by the Company or any other
Borrower pursuant to the terms of this Agreement.
SECTION 8.02. AGENT'S RELIANCE, ETC. Neither the 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 Agent: (i) may treat
the Lender that made any Advance as the holder of the Debt resulting therefrom
until the Agent receives and accepts an Assumption Agreement entered into by an
Assuming Lender as provided in Section 2.18 or an Assignment and Acceptance
entered into by such Lender, as assignor, and an Eligible Assignee, as assignee,
as provided in Section 9.07; (ii) may consult with legal counsel (including
counsel for the Company), independent public accountants and other experts
selected by it and shall not be 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; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) 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 Company or any other Borrower or to inspect the
property (including the books and records) of the Company or any other Borrower;
(v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, this Agreement or any other instrument
or document furnished pursuant hereto; and (vi) 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 facsimile) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 8.03. CITIBANK AND AFFILIATES. With respect to its
Commitments, 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 Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" 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, accept investment banking
engagements from and generally engage in any kind of business with, the Company,
any of its Subsidiaries and any Person who may do business with or own
securities of the Company or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Lenders.
SECTION 8.04. LENDER CREDIT DECISION. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender 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 and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender 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.
47
SECTION 8.05. INDEMNIFICATION. (a) Each Lender severally
agrees to indemnify the Agent (to the extent not promptly reimbursed by the
Company) from and against such Lender's Ratable Share of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against the Agent in any way
relating to or arising out of this Agreement or any action taken or omitted
by the Agent under this Agreement (collectively, the "INDEMNIFIED COSTS"),
PROVIDED that no Lender shall be liable for any portion of the Indemnified
Costs resulting from the Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender agrees to reimburse the
Agent promptly upon demand for its Ratable Share of any out-of-pocket
expenses (including reasonable counsel fees) incurred by the 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 Agent is not
reimbursed for such expenses by the Company. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs,
this Section 8.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party.
(b) Each Lender severally agrees to indemnify the Issuing
Banks (to the extent not promptly reimbursed by the Company) from and against
such Lender's Ratable Share of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against any such Issuing Bank in any way relating to or arising out of
this Agreement or any action taken or omitted by such Issuing Bank hereunder or
in connection herewith; PROVIDED, HOWEVER, that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such
Issuing Bank's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse any such Issuing Bank promptly upon
demand for its Ratable Share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Company under Section
9.04, to the extent that such Issuing Bank is not promptly reimbursed for such
costs and expenses by the Company.
(c) The failure of any Lender to reimburse the Agent or any
Issuing Bank promptly upon demand for its Ratable Share of any amount required
to be paid by the Lenders to the Agent as provided herein shall not relieve any
other Lender of its obligation hereunder to reimburse the Agent or any Issuing
Bank for its Ratable Share of such amount, but no Lender shall be responsible
for the failure of any other Lender to reimburse the Agent or any Issuing Bank
for such other Lender's Ratable Share of such amount. Without prejudice to the
survival of any other agreement of any Lender hereunder, the agreement and
obligations of each Lender contained in this Section 8.05 shall survive the
payment in full of principal, interest and all other amounts payable hereunder
and under the Notes. Each of the Agent and each Issuing Bank agrees to return to
the Lenders their respective Ratable Shares of any amounts paid under this
Section 8.05 that are subsequently reimbursed by the Company or any Borrower.
SECTION 8.06. SUCCESSOR AGENT. The Agent may resign at any
time by giving written notice thereof to the Lenders and the Company and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be 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 $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as 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 Agent under this Agreement.
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SECTION 8.07. SUB-AGENT. The Sub-Agent has been designated
under this Agreement to carry out duties of the Agent. The Sub-Agent shall be
subject to each of the obligations in this Agreement to be performed by the
Sub-Agent, and each of the Company, each other Borrower and the Lenders agrees
that the Sub-Agent shall be entitled to exercise each of the rights and shall be
entitled to each of the benefits of the Agent under this Agreement as relate to
the performance of its obligations hereunder.
SECTION 8.08. OTHER AGENTS. Each Lender hereby acknowledges
that neither the documentation agent nor any other Lender designated as any
"Agent" (other than the Agent) on the signature pages hereof has any liability
hereunder other than in its capacity as a Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Company or any other Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Required Lenders, 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 Lenders, do any of the
following: (a) waive any of the conditions specified in Section 3.01 or Section
3.02, (b) except as provided in Section 2.18(c), increase the Commitments of the
Lenders or subject the Lenders to any additional obligations, (c) reduce the
principal of, or interest on, the Advances or any fees or other amounts payable
hereunder, (d) except as provided in Section 2.18(b), postpone any date fixed
for any payment of principal of, or interest on, the Advances or any fees or
other amounts payable hereunder, (e) change the percentage of the Revolving
Credit Commitments or of the aggregate unpaid principal amount of the Advances,
or the number of Lenders, that shall be required for the Lenders or any of them
to take any action hereunder, (f) reduce or limit the obligations of the Company
under Section 7.01 or release or otherwise limit the Company's liability with
respect to its obligations under Article VII, (g) reduce or limit in any
material respect the obligations of any Subsidiary Guarantor to the Lenders
under Section 1(a)(i) of the Subsidiary Guaranty or release or otherwise limit
in any material respect any Subsidiary Guarantor's liability to the Lenders with
respect to its obligations under the Subsidiary Guaranty (except, in each case,
for a release of a Subsidiary Guarantor in accordance with the terms of the
Subsidiary Guaranty) or (h) amend the definition of "Required Lenders" or this
Section 9.01; PROVIDED FURTHER that (x) no amendment, waiver or consent shall,
unless in writing and signed by the Agent in addition to the Lenders required
above to take such action, affect the rights or duties of the Agent under this
Agreement or any Note, (y) no amendment, waiver or consent of Section 9.07(f)
shall, unless in writing and signed by each Lender that has granted a funding
option to an SPC in addition to the Lenders required above to take such action,
affect the rights or duties of such Lender or SPC under this Agreement or any
Note; and (z) no amendment, waiver or consent shall, unless in writing and
signed by the Issuing Banks in addition to the Lenders required above to take
such action, adversely affect the rights or obligations of the Issuing Banks in
their capacities as such under this Agreement.
SECTION 9.02. NOTICES, ETC. All notices and other
communications provided for hereunder shall be in writing (including facsimile
communication) and mailed, telecopied or delivered, if to the Company or any
other Borrower, to (or in care of) the Company, at its address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Vice President and Treasurer
(with a copy at the same address to the Senior Vice President and General
Counsel); if to any Initial Lender, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender, at its Domestic
Lending Office specified in the Assumption Agreement or the Assignment and
Acceptance pursuant to which it became a Lender; and if to the Agent, at its
address at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Bank Loan
Syndications Department; or, as to the Company or the Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to
49
each other party, at such other address as shall be designated by such party in
a written notice to the Company and the Agent. All such notices and
communications shall, when mailed, telecopied or telegraphed, be effective when
deposited in the mails, telecopied or delivered to the telegraph company,
respectively, except that notices and communications to the Agent pursuant to
Article II, III or VII shall not be effective until received by the Agent.
Delivery by facsimile of an executed counterpart of any amendment or waiver of
any provision of this Agreement or the Notes or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.
SECTION 9.03. NO WAIVER; REMEDIES. No failure on the part of
any Lender or the 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 9.04. COSTS AND EXPENSES. (a) The Company agrees to
pay on demand all reasonable out-of-pocket expenses of the 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, (A) all due diligence, syndication
(including printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agent with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under this
Agreement. The Company further agrees to pay on demand all costs and expenses of
the Agent and the Lenders, if any (including, without limitation, reasonable
counsel fees and expenses), 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 fees and expenses of counsel for the Agent and each Lender in
connection with the enforcement of rights under this Section 9.04(a).
(b) The Company agrees to indemnify and hold harmless the
Agent and each Lender and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "INDEMNIFIED PARTY") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel)
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) the Notes, this Agreement, any
of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 9.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by the Company, its directors, shareholders or creditors
or an Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto. The Company also agrees not to assert any claim for
special, indirect, consequential or punitive damages against the Agent, any
Lender, any of their Affiliates, or any of their respective directors, officers,
employees, attorneys and agents, on any theory of liability, arising out of or
otherwise relating to the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Advances.
(c) If any payment of principal of, or Conversion of, any
Eurocurrency Rate Advance is made by any Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10 or
2.12, acceleration of the maturity of the Notes pursuant to Section 6.01 or for
any other reason, or by an Eligible Assignee to a Lender other than on the last
day of the Interest Period for such Advance upon an assignment of rights and
obligations under this Agreement pursuant to Section 9.07 as a result of a
demand by the Company pursuant to Section 9.07(a), such Borrower shall, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the
50
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that 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 any Lender to
fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement
of the Company and the other Borrowers hereunder, the agreements and obligations
of the Company and the other Borrowers contained in Sections 2.11, 2.14 and 9.04
shall survive the payment in full of principal, interest and all other amounts
payable hereunder and under the Notes.
SECTION 9.05. RIGHT OF SET-OFF. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Agent to declare the Advances due and payable pursuant to the provisions of
Section 6.01, each Lender 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
Lender or such Affiliate to or for the credit or the account of the Company or
any Borrower against any and all of the obligations of the Company or any
Borrower now or hereafter existing under this Agreement and any Note held by
such Lender, whether or not such Lender shall have made any demand under this
Agreement or such Note and although such obligations may be unmatured. Each
Lender agrees promptly to notify the appropriate Borrower after any such set-off
and application, PROVIDED that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each Lender and its
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender and
its Affiliates may have.
SECTION 9.06. BINDING EFFECT. This Agreement shall be binding
upon and inure to the benefit of the Company, the Agent and each Lender and
their respective successors and assigns, except that neither the Company nor any
other Borrower shall have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders.
SECTION 9.07. ASSIGNMENTS AND PARTICIPATIONS. (a) Each
Lender may and, if demanded by the Company (following a demand by such Lender
pursuant to Section 2.11 or 2.14) upon at least 5 Business Days' notice to
such Lender and the Agent, will assign to one or more Persons all or a
portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Revolving Credit Commitment, its
Unissued Letter of Credit Commitment, the Advances owing to it, its
participations in Letters of Credit and the Note or Notes held by it);
PROVIDED, HOWEVER, that (i) each such assignment shall be of a constant, and
not a varying, percentage of all rights and obligations under this Agreement,
(ii) except in the case of an assignment to a Person that, immediately prior
to such assignment, was a Lender or an assignment of all of a Lender's rights
and obligations under this Agreement, the amount of (x) the Revolving Credit
Commitment of the assigning Lender 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 $5,000,000 or an
integral multiple of $1,000,000 in excess thereof and (y) the Unissued Letter
of Credit Commitment of the assigning Lender 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 $1,000,000 or
an integral multiple of $1,000,000 in excess thereof, (iii) each such
assignment shall be to an Eligible Assignee, (iv) each such assignment made
as a result of a demand by the Company pursuant to this Section 9.07(a) shall
be arranged by the Company after consultation with the Agent and shall be
either an assignment of all of the rights and obligations of the assigning
Lender under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to
make any such assignment as a result of a demand by the Company pursuant to
this Section 9.07(a) unless and until such Lender shall have received one or
more payments from either the Company or one or more Eligible Assignees in an
51
aggregate amount at least equal to the aggregate outstanding principal amount of
the Advances owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts payable to such
Lender under this Agreement, and (vi) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note subject to such
assignment and a processing and recordation fee of $3,500 payable by the parties
to each such assignment, PROVIDED, HOWEVER, that in the case of each assignment
made as a result of a demand by the Company, such recordation fee shall be
payable by the Company except that no such recordation fee shall be payable in
the case of an assignment made at the request of the Company to an Eligible
Assignee that is an existing Lender, and (vii) any Lender may, without the
approval of the Company or the Agent, assign all or a portion of its rights to
any of its Affiliates or to another Lender unless on the date of such assignment
the assignee would be entitled to make a demand pursuant to Section 2.11 or
2.14, in which case such assignment shall be permitted only if the assignee
shall waive in a manner satisfactory to the Company in form and substance its
rights to make such a demand. 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 Lender
hereunder and (y) the Lender 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 (other than its rights under
Section 2.11, 2.14 and 9.04 to the extent any claim thereunder relates to an
event arising prior such assignment) 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 Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender 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 Lender 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, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, this
Agreement or any other instrument or document furnished pursuant hereto; (ii)
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company or any
other Borrower or the performance or observance by the Company or any other
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 decision to
enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, such assigning Lender or any
other Lender 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 confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to the Agent by the terms hereof, together
with such powers and discretion as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be performed
by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Note or Notes subject to such assignment, the Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Company.
52
(d) The Agent shall maintain at its address referred to in
Section 9.02 a copy of each Assumption Agreement and each Assignment and
Acceptance delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and the Commitment of, and principal
amount of the Advances owing to, each Lender from time to time (the "REGISTER").
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Company, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Company or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Each Lender may sell participations to one or more banks
or other entities (other than the Company or any of its Affiliates) 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 any Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitment
to the Borrowers hereunder) shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) such Lender shall remain the holder of any such Note for
all purposes of this Agreement, (iv) the Company, the other Borrowers, the Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
rights as a Lender hereunder, including, without limitation, any right to make
any demand under Section 2.11 or 2.14 or right to approve any amendment or
waiver of any provision of this Agreement or any Note, or any consent to any
departure by the Company or any other Borrower therefrom, except to the extent
that such amendment, waiver or consent would reduce the principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or postpone any date fixed for
any payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder or reduce or limit the obligations of the Company
under Section 7.01 or release or otherwise limit the Company's liability with
respect to its obligations under Article VII or amend this Section 9.07(e) in
any manner adverse to such participant, in each case to the extent subject to
such participation.
(f) Each Lender may grant to a special purpose funding vehicle
(an "SPC") the option to fund all or any part of any Advance that such Lender is
obligated to fund under this Agreement (and upon the exercise by such SPC of
such option to fund, such Lender's obligations with respect to such Advance
shall be deemed satisfied to the extent of any amounts funded by such SPC);
PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrowers hereunder) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) each Borrower, the
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, (iv) any such option granted to an SPC shall not constitute a
commitment by such SPC to fund any Advance, (v) neither the grant nor the
exercise of such option to an SPC shall increase the costs or expenses or
otherwise increase or change the obligations of any Borrower under this
Agreement (including, without limitation, its obligations under Section 2.14)
and (vi) no SPC shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by any
Borrower therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such grant of
funding option, or postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such grant of funding option. Each party to this
Agreement hereby agrees that no SPC shall be liable for any indemnity or payment
under this Agreement for which a Lender would otherwise be liable. In
furtherance of the foregoing, each party hereto hereby agrees (which agreements
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPC, it will not institute against, or
join any other Person in instituting against, such
53
SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof.
(g) Any Lender may, in connection with any assignment,
participation or grant of funding option or proposed assignment, participation
or grant of funding option pursuant to this Section 9.07, disclose to the
assignee, participant or SPC or proposed assignee, participant or SPC, any
information relating to any Borrower furnished to such Lender by or on behalf of
such Borrower; PROVIDED that, prior to any such disclosure, the assignee,
participant or SPC or proposed assignee, participant or SPC shall agree to
preserve the confidentiality of any Borrower Information relating to any
Borrower received by it from such Lender.
(h) Notwithstanding any other provision set forth in this
Agreement, any Lender 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 any Note or 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.
SECTION 9.08. CONFIDENTIALITY. Neither the Agent nor any
Lender may disclose to any Person any confidential, proprietary or non-public
information of the Company furnished to the Agent or the Lenders by the Company
(such information being referred to collectively herein as the "BORROWER
INFORMATION"), except that each of the Agent and each of the Lenders may
disclose Borrower Information (i) to its and its Affiliates' employees,
officers, directors, agents and advisors who need to know the Borrower
Information in connection with this Agreement (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Borrower Information and instructed to keep such Borrower
Information confidential on substantially the same terms as provided herein),
(ii) to the extent requested by any applicable regulatory authority, (iii) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (iv) to any other party to this Agreement, (v) to the
extent necessary in connection with the exercise of any remedies hereunder or
any suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder, (vi) subject to an agreement for the benefit of the Company
containing provisions substantially the same as those of this Section 9.08, to
any assignee, participant, SPC, or prospective assignee, participant or SPC,
(vii) to the extent such Borrower Information (A) is or becomes generally
available to the public on a non-confidential basis other than as a result of a
breach of this Section 9.08 by the Agent or such Lender, or (B) is or becomes
available to the Agent or such Lender on a nonconfidential basis from a source
other than the Company that, to the knowledge of the Agent or such Lender, is
not in violation of any confidentiality agreement with the Company and (viii)
with the consent of the Company. Notwithstanding anything herein to the
contrary, the Agent and the Lenders may disclose to any and all Persons, without
limitation of any kind, the U.S. tax treatment and tax structure of the
transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to the Agent or the Lenders
relating to such U.S. tax treatment and tax structure.
SECTION 9.09. DESIGNATED SUBSIDIARIES. (a) DESIGNATION. The
Company may at any time, and from time to time, by delivery to the Agent of a
Designation Agreement duly executed by the Company and the respective Subsidiary
and substantially in the form of Exhibit E hereto, designate such Subsidiary as
a "Designated Subsidiary" for purposes of this Agreement and such Subsidiary
shall thereupon become a "Designated Subsidiary" for purposes of this Agreement
and, as such, shall have all of the rights and obligations of a Borrower
hereunder. The Agent shall promptly notify each Lender of each such designation
by the Company and the identity of the respective Subsidiary.
(b) TERMINATION. Upon the payment and performance in full of
all of the indebtedness, liabilities and obligations under this Agreement of any
Designated Subsidiary then, so long as at the time no Notice of Borrowing in
respect of such Designated Subsidiary is outstanding, such Subsidiary's status
as a "Designated Subsidiary" shall terminate upon notice to such effect from the
Agent to the Lenders (which notice the Agent shall
54
give promptly, and only upon its receipt of a request therefor from the
Company). Thereafter, the Lenders shall be under no further obligation to make
any Advance hereunder to such Designated Subsidiary.
SECTION 9.10. GOVERNING LAW. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 9.11. 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. Delivery of an executed counterpart of a signature page to this
Agreement by facsimile shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.12. JUDGMENT. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder in Dollars
into another currency, the parties hereto agree, to the fullest extent that they
may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase Dollars with
such other currency at Citibank's principal office in London at 11:00 A.M.
(London time) on the Business Day preceding that on which final judgment is
given.
(b) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder in a Committed Currency into
Dollars, the parties agree to the fullest extent that they may effectively do
so, that the rate of exchange used shall be that at which in accordance with
normal banking procedures the Agent could purchase such Committed Currency with
Dollars at Citibank's principal office in London at 11:00 A.M. (London time) on
the Business Day preceding that on which final judgment is given.
(c) The obligation of the Company and each other Borrower in
respect of any sum due from it in any currency (the "PRIMARY CURRENCY") to any
Lender or the Agent hereunder shall, notwithstanding any judgment in any other
currency, be discharged only to the extent that on the Business Day following
receipt by such Lender or the Agent (as the case may be), of any sum adjudged to
be so due in such other currency, such Lender or the Agent (as the case may be)
may in accordance with normal banking procedures purchase the applicable Primary
Currency with such other currency; if the amount of the applicable Primary
Currency so purchased is less than such sum due to such Lender or the Agent (as
the case may be) in the applicable Primary Currency, the Company and each other
Borrower agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify such Lender or the Agent (as the case may be) against such loss,
and if the amount of the applicable Primary Currency so purchased exceeds such
sum due to any Lender or the Agent (as the case may be) in the applicable
Primary Currency, such Lender or the Agent (as the case may be) agrees to remit
to the Company or such other Borrower such excess.
SECTION 9.13. JURISDICTION, ETC. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the Notes, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. The Company and each other
Borrower hereby further irrevocably consent to the service of process in any
action or proceeding in such courts by the mailing thereof by any parties hereto
by registered or certified mail, postage prepaid, to the Company at its address
specified pursuant to Section 9.02. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement
or the Notes in the courts of any jurisdiction.
55
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 9.14. SUBSTITUTION OF CURRENCY. If a change in any
Committed Currency occurs pursuant to any applicable law, rule or regulation of
any governmental, monetary or multi-national authority, this Agreement
(including, without limitation, the definitions of Eurocurrency Rate) will be
amended to the extent determined by the Agent (acting reasonably and in
consultation with the Company) to be necessary to reflect the change in currency
and to put the Lenders and the Company in the same position, so far as possible,
that they would have been in if no change in such Committed Currency had
occurred.
SECTION 9.15. NO LIABILITY OF THE ISSUING BANKS. None of the
Agent, the Lenders nor any Issuing Bank, nor any of their Affiliates, or the
respective directors, officers, employees, agents and advisors of such Person or
such Affiliate, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder, or any error, omission, interruption,
loss or delay in transmission or delivery of any draft, notice or other
communication under or relating to any Letter of Credit (including any document
required to make a drawing thereunder), any error in interpretation of technical
terms or any consequence arising from causes beyond the control of the
applicable Issuing Bank; PROVIDED that the foregoing shall not be construed to
excuse any Issuing Bank from liability to the applicable Borrower to the extent
of any direct damages (as opposed to consequential damages, claims in respect of
which are hereby waived by the Borrowers to the extent permitted by applicable
law) suffered by such Borrower that are caused by such Issuing Bank's failure to
exercise care when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof or any failure to honor a
Letter of Credit where such Issuing Bank is, under applicable law, required to
honor it. The parties hereto expressly agree that, as long as the Issuing Bank
has not acted with gross negligence or willful misconduct, such Issuing Bank
shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, an
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation or refuse to
accept and make payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.
SECTION 9.16. WAIVER OF JURY TRIAL. Each of the Company, each
other Borrower, the Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or the
Notes or the actions of the Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.
56
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.
THE INTERPUBLIC GROUP OF
COMPANIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Vice President and Treasurer
CITIBANK, N.A.,
as Agent
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
--------------------------
Title: Vice President
LETTER OF CREDIT COMMITMENT
$130,000,000 JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Vice President
$20,000,000 HSBC BANK USA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Title: First Vice President
$50,000,000 KEYBANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: Senior Vice President
$200,000,000 Total of the Letter of Credit Commitments
LENDERS
LEAD ARRANGER
REVOLVING CREDIT COMMITMENT
$90,000,000 CITIBANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
--------------------------
Title: Vice President
AGENTS
$80,000,000 JPMORGAN CHASE BANK
57
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Vice President
$75,000,000 UBS AG, CAYMAN ISLANDS BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. SAINT
--------------------------
Title: Associate Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Title: Director
$70,000,000 HSBC BANK USA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Title: First Vice President
LENDERS
$50,000,000 LLOYDS TSB BANK PLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇▇ RANKING
---------------------------
Title: Assistant Vice President
$40,000,000 BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------
Title: Director
$25,000,000 FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Title: Senior Vice President
$25,000,000 ING CAPITAL LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: Managing Director
$20,000,000 KEYBANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: Senior Vice President
$15,000,000 ROYAL BANK OF CANADA
By: /s/ ▇▇▇▇▇ ▇▇▇
--------------------------
58
Title: Manager
$10,000,000 WESTPAC BANKING CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Title: Vice President
$500,000,000 Total of the Revolving Credit Commitments
59
SCHEDULE I
THE INTERPUBLIC GROUP OF COMPANIES, INC.
364-DAY CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EUROCURRENCY LENDING OFFICE
-------------------------------------- ----------------------------------- ------------------------------------
Barclays Bank PLC ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ London, England
Attn: ▇▇▇▇▇▇▇▇▇ Challenger-▇▇▇▇▇ ▇▇▇▇ ▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ Attn: Graham Smart
F: ▇▇▇ ▇▇▇-▇▇▇▇ T: 44 20 777 36450
F: 44 20 777 36807
-------------------------------------- ----------------------------------- ------------------------------------
Citibank, N.A. Two Penns Way, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: May ▇▇▇▇ Attn: May ▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
-------------------------------------- ----------------------------------- ------------------------------------
Fleet National Bank 1185 Avenue of the Americas ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
-------------------------------------- ----------------------------------- ------------------------------------
HSBC Bank USA ▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
-------------------------------------- ----------------------------------- ------------------------------------
ING Capital LLC ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
-------------------------------------- ----------------------------------- ------------------------------------
JPMorgan ▇▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Center 4 Chase Metrotech Center
15th Floor 15th Floor
Brooklyn, NY 11245 ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
-------------------------------------- ----------------------------------- ------------------------------------
KeyBank National Association ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ Dinscher Attn: ▇▇▇▇▇▇▇ Dinscher
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: 216689-4981 F: 216689-4981
-------------------------------------- ----------------------------------- ------------------------------------
Lloyds TSB Bank PLC Lloyds TSB Bank plc Miami Lloyds TSB Bank plc Miami
One Biscayne Tower Suite 3200 One ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 2 South Biscayne Boulevard
Miami, FL 33131 ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------- ----------------------------------- ------------------------------------
Royal Bank of Canada Royal Bank of Canada Royal Bank of Canada
New York Branch New York Branch
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Manager, Loans Attn: Manager, Loans
1
Administration Administration
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
With a copy to: With a copy to:
Attn: ▇▇▇▇▇ ▇▇▇/▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇/▇▇▇▇▇ ▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇/6249 T: ▇▇▇ ▇▇▇-▇▇▇▇/6249
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
-------------------------------------- ----------------------------------- ------------------------------------
UBS AG, Cayman Islands Branch c/o UBS AG, Stamford Branch c/o UBS AG, Stamford Branch
Banking Product Services Banking Product Services
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
-------------------------------------- ----------------------------------- ------------------------------------
Westpac Banking Corporation ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
-------------------------------------- ----------------------------------- ------------------------------------
2
SCHEDULE 2.01(b)
LETTERS OF CREDIT
ISSUING BANK BENEFICIARY L/C NUMBER EXPIRATION TOTAL AMOUNT
------------ ----------- ----------- ---------- ------------
JPMorgan Chase Bank Granada Media Group T-235804 6/30/03 (Pound)50,000,000
Ltd, et al.
JPMorgan Chase Bank Granada Media Group T-235806 6/30/03 (Pound)20,000,000
Ltd, et al.
JPMorgan Chase Bank RLI Insurance Company T-218093 10/31/03 US$15,000,000
JPMorgan Chase Bank ▇▇▇▇▇▇ T-206187 7/10/03 EUR6,774,617
Vermoegensverwaltun-
gsgesellschaft MBH
JPMorgan Chase Bank ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ T-206189 7/10/03 EUR6,774,617
Vermoegensverwaltun-
gsgesellschaft
JPMorgan ▇▇▇▇▇ ▇▇▇▇ ▇▇/▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇-▇▇▇▇▇▇ 3/31/04 US$1,000,000
Limited Partnership
JPMorgan Chase Bank Atlantic Mutual T-222830 2/28/04 US$1,100,000
Companies
JPMorgan Chase Bank Atlantic Mutual T-235678 2/28/04 US$1,100,000
Companies
HSBC Bank USA RLI Insurance Company SDCMTN542602 10/31/03 US$15,000,000
HSBC Bank USA HSBC Singapore SDCMTN544962 12/31/03 SGD3,167,000
1
SCHEDULE 5.02(f)
------------------------------- ---------------------------- ---------------------------- ----------------------------
(US$s in Millions)
Estimated Up-Front
Cash Portion of Purchase Price
----------------------------------------
TARGET COMPANY ACQUIRING AGENCY COUNTRY US DOLLARS
-------------- ---------------- ------- ----------
Competence FCB Brazil 0.4
DLKW FCB UK 10.7
Idea Azione Draft Italy 2.5
Marcomm Octagon USA 0.3
New Time ▇▇▇▇▇▇ Brazil 0.2
RGB McCann Italy 0.5
Satz & Graphik ▇▇▇▇ Group Austria 1.0
Try ▇▇▇▇ Group Norway 0.9
WTA Tier II Event Octagon Belgium 3.2
-------
TOTAL 19.7
2
SCHEDULE 5.02(i)
CONSOLIDATED SUBSIDIARY DEBT
(US$ 000'S)
Payable to Banks $1,389.6
Capitalized Leases 1,140.0
Mortgage Payable 86.2
Letters of Credit (Undrawn) 37,529.2
---------------------------------
TOTAL $40,145.1
=================================
1
EXHIBIT A - FORM OF
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, THE INTERPUBLIC GROUP OF
COMPANIES, INC., a Delaware corporation (the "BORROWER"), HEREBY PROMISES TO PAY
to the order of ________________________ (the "LENDER") for the account of its
Applicable Lending Office on the later of (a) the Termination Date and (b) if
the Borrower has made the Term Loan Election prior to the Termination Date, the
Maturity Date (each as defined in the Credit Agreement referred to below) the
principal sum of U.S.$[amount of the Lender's Revolving Credit Commitment in
figures] or, if less, the aggregate principal amount of the Advances made by the
Lender to the Borrower pursuant to the
364-Day Credit Agreement dated as of May
15, 2003 among the Borrower, the Lender and certain other lenders parties
thereto, JPMorgan Chase Bank, as syndication agent, UBS Warburg LLC and HSBC
Bank USA, as co-documentation agents, Citigroup Global Markets Inc., as lead
arranger and book manager, and Citibank, N.A. as Agent for the Lender and such
other lenders (as amended or modified from time to time, the "CREDIT AGREEMENT";
the terms defined therein being used herein as therein defined) outstanding on
such date.
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 in respect of each Advance (i) in
Dollars are payable in lawful money of the United States of America to the Agent
at its account maintained at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in same
day funds and (ii) in any Committed Currency are payable in such currency at the
applicable Payment Office in same day funds. Each Advance owing to the Lender by
the Borrower pursuant to the Credit Agreement, and all payments made on account
of principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Promissory
Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Advances by the Lender to the
Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Advance being evidenced by this Promissory
Note, (ii) contains provisions for determining the Dollar Equivalent of Advances
denominated in Committed Currencies and (iii) 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.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
THE INTERPUBLIC GROUP OF
COMPANIES, INC.
By___________________________
Title:
1
ADVANCES AND PAYMENTS OF PRINCIPAL
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
AMOUNT OF
DATE AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
ADVANCE OR PREPAID BALANCE MADE BY
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
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2
EXHIBIT B - FORM OF
NOTICE OF REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, [The Interpublic Group of Companies,
Inc.][Name of Designated Subsidiary], refers to the
364-Day Credit Agreement,
dated as of May 15, 2003 (as amended or modified from time to time, the "CREDIT
AGREEMENT", the terms defined therein being used herein as therein defined),
among The Interpublic Group of Companies, Inc., certain Lenders parties thereto,
JPMorgan Chase Bank, as syndication agent, UBS Warburg LLC and HSBC Bank USA, as
co-documentation agents, Citigroup Global Markets Inc., as lead arranger and
book manager, and Citibank, N.A., as Agent for said Lenders, and hereby gives
you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that
the undersigned hereby requests a Revolving Credit Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Revolving Credit Borrowing (the "PROPOSED REVOLVING CREDIT BORROWING") as
required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit
Borrowing is _______________, 200_.
(ii) The Type of Advances comprising the Proposed Revolving
Credit Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit
Borrowing is [$_______________][for a Revolving Credit Borrowing in a
Committed Currency, list currency and amount of Revolving Credit
Borrowing].
[(iv) The initial Interest Period for each Eurocurrency Rate
Advance made as part of the Proposed Revolving Credit Borrowing is
_____ month[s].]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Revolving Credit Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement and in Section 5 of the Subsidiary
Guaranty [and in the Designation Agreement of the undersigned] are
correct, before and after giving effect to the Proposed Revolving
Credit Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date; and
(B) no event has occurred and is continuing, or would result
from such Proposed Revolving Credit Borrowing or from the application
of the proceeds therefrom, that constitutes a Default.
Very truly yours,
[THE INTERPUBLIC GROUP OF
COMPANIES, INC.][DESIGNATED SUBSIDIARY]
By___________________________
Title:
1
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the
364-Day Credit Agreement dated as of
May 15, 2003 (as amended or modified from time to time, the "CREDIT AGREEMENT")
among The Interpublic Group of Companies, Inc., a Delaware corporation (the
"COMPANY"), the Lenders (as defined in the Credit Agreement), JPMorgan Chase
Bank, as syndication agent, UBS Warburg LLC and HSBC Bank USA, as
co-documentation agents, Citigroup Global Markets, Inc., as lead arranger and
book manager, and Citibank, N.A., as agent for the Lenders (the "AGENT"). Terms
defined in the Credit Agreement and not defined herein are used herein with the
same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Credit Agreement as of the
date hereof equal to the percentage interest specified on Schedule I hereto of
all outstanding rights and obligations under the Credit Agreement together with
participations in Letters of Credit held by the Assignor on the date hereof.
After giving effect to such sale and assignment, the amount of the Assignee's
Revolving Credit Commitment, and Letter of Credit Commitment and the amount of
the Advances owing to the Assignee will be as set forth on Schedule 1 hereto.
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, or the perfection or priority of any lien
or security interest created or purported to be created under or in connection
with, 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 Company or the
performance or observance by the Company of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Note, if any, held by the Assignor [and requests that the
Agent exchange such Note for a new Note payable to the order of [the Assignee in
an amount equal to the Revolving Credit Commitment assumed by the Assignee
pursuant hereto or new Notes payable to the order of the Assignee in an amount
equal to the Revolving Credit Commitment assumed by the Assignee pursuant hereto
and] the Assignor in an amount equal to the Revolving Credit Commitment retained
by the Assignor under the Credit Agreement[, respectively,] as 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(e) thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender 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) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will perform
in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (vi)
attaches any U.S. Internal Revenue Service forms required under Section 2.14 of
the Credit Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the
1
"EFFECTIVE DATE") shall be the date of acceptance hereof by the Agent, unless
otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective 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 Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights (other than
its rights under Section 2.11, 2.14 and 9.04 of the Credit Agreement to the
extent any claim thereunder relates to an event arising prior to this Assignment
and Acceptance) and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the 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 facility 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 Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance 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. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
facsimile shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
2
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Revolving Credit Commitment: $______
Assignee's Letter of Credit Commitment: $______
Aggregate outstanding principal amount of Advances assigned: $______
Principal amount of Note payable to Assignee: $______
Principal amount of Note payable to Assignor: $______
Effective Date*: _______________, 200_
[NAME OF ASSIGNOR], as Assignor
By___________________________
Title:
Dated: _______________, 200_
[NAME OF ASSIGNEE], as Assignee
By___________________________
Title:
Dated: _______________, 200_
Domestic Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
----------------------
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
3
Accepted [and Approved]** this
__________ day of _______________, 200_
CITIBANK, N.A., as Agent
By
------------------------------------------
Title:
[Approved this_____ day
of _______________, 200_
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By ]*
------------------------------------------
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
* Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
4
EXHIBIT D-1 - FORM OF
OPINION OF CLEARY,
GOTTLIEB, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
[Effective Date]
The parties named as Lenders in
the below-referenced Credit Agreement
Ladies and Gentlemen:
We have acted as special counsel to The Interpublic Group of
Companies, Inc. (the "COMPANY") in connection with that certain
364-Day Credit
Agreement, dated as of May 15, 2003 (the "CREDIT AGREEMENT"), among the Company,
the Lenders parties thereto, JPMorgan Chase Bank, as syndication agent, UBS
Warburg LLC and HSBC Bank USA, as co-documentation agents, Citigroup Global
Markets, Inc., as lead arranger and book manager, and Citibank, N.A., as Agent
for said Lenders. This opinion is furnished to you pursuant to Section
3.01(d)(iv) of the Credit Agreement.
In arriving at the opinions expressed below, we have examined
the following documents:
(1) an executed copy of the Credit Agreement;
(2) executed copies of the Notes (as defined in the
Credit Agreement), dated the date hereof, of the
Company payable to the Lenders named therein (the
"COMPANY NOTES"); and
(3) the other documents furnished by the Company pursuant
to Article III of the Credit Agreement.
In addition, we have reviewed the originals or copies
certified or otherwise identified to our satisfaction of all such corporate
records of the Company and such other instruments and other certificates of
public officials, officers and representatives of the Company and such other
persons, and we have made such investigations of law, as we have deemed
necessary as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. In addition, we have
assumed and have not verified the accuracy as to factual matters of each
document we have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company in the Credit Agreement).
Based upon the foregoing and subject to the further
assumptions and qualifications set forth below, it is our opinion that:
1. The Company has corporate power to enter into the Credit
Agreement and the Company Notes and to perform its obligations
thereunder.
1
2. The execution and delivery by the Company of the Credit
Agreement and the Company Notes have been duly authorized by all
necessary corporate action of the Company.
3. The performance by the Company of its obligations under the
Credit Agreement and the Company Notes (a) does not require any
consent, approval, authorization, registration or qualification of or
with any governmental authority of the United States, the State of
Delaware or the State of New York and (b) does not result in a
violation of any applicable United States federal or New York State
law, rule or regulation or the Delaware General Corporation Law.
4. The Credit Agreement is a valid, binding and enforceable
agreement of the Company.
5. The Company Notes, after giving effect to the initial
borrowing by the Company under the Credit Agreement, will be valid,
binding and enforceable obligations of the Company.
Insofar as the foregoing opinions relate to the validity,
binding effect or enforceability of any agreement or obligation of the Company,
(a) we have assumed that each party to such agreement or obligation has
satisfied those legal requirements that are applicable to it to the extent
necessary to make such agreement or obligation enforceable against it (except
that no such assumption is made as to the Company regarding matters of the
federal law of the United States of America, the law of the State of New York or
the General Corporation Law of the State of Delaware) and (b) such opinions are
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of equity.
We express no opinion as to the applicability or effect of the
laws of any jurisdiction other than the State of New York wherein any Lender may
be located or wherein enforcement of the Credit Agreement or the Notes may be
sought that may limit the rates of interest which may be charged or collected.
We express no opinion as to (a) Section 2.15 of the Credit
Agreement insofar as it provides that any Lender purchasing a participation from
another Lender pursuant thereto may exercise set-off or similar rights with
respect to such participation or (b) Section 9.12 of the Credit Agreement.
We have assumed that any assignments made by or among the
Lenders of their rights and obligations under the Credit Agreement will not
contravene New York Judiciary Law Section 489 (which makes it a criminal offense
to take an assignment of a debt obligation with the intent of and for the
purpose of bringing an action or proceeding thereon).
We note that the designations in Section 9.13(a) of the Credit
Agreement are (notwithstanding the waiver in Section 9.13(b) of the Credit
Agreement) subject to the power of such federal court to transfer actions
pursuant to 28 U.S.C. ss.1404(a) or to dismiss such actions or proceedings on
the grounds that such a federal court is an inconvenient forum for such action
or proceeding.
With respect to the first sentence of Section 9.13(a) of the
Credit Agreement, we express no opinion as to the subject matter jurisdiction of
any United States federal court to adjudicate any action relating to the Credit
Agreement where jurisdiction based on diversity of citizenship under 28 U.S.C.
ss.1332 does not exist.
The opinion expressed in paragraph 3 above relates only to
those laws, rules and regulations that, in our experience, are normally
applicable to transactions of the type referred to in the Credit Agreement.
The foregoing opinions are limited to the law of the State of
New York, the General Corporation Law of the State of Delaware and the federal
law of the United States, but we express no opinion as to any state securities
or Blue Sky laws or United States federal securities laws.
2
We are furnishing this opinion letter to you solely for your
benefit in connection with the Credit Agreement. This opinion letter is not to
be used, circulated, quoted or otherwise referred to for any other purpose.
Notwithstanding the foregoing, a copy of this opinion letter may be furnished
to, and relied upon by, your successors and a permitted transferee who becomes a
party to the Credit Agreement as a Lender thereunder, and you or any such
successor or transferee may show this opinion to any governmental authority
pursuant to requirements of applicable law or regulations. The opinions
expressed herein are, however, rendered on and as of the date hereof, and we
assume no obligation to advise you or any such transferee or governmental
authority or any other person, or to make any investigations, as to any legal
developments or factual matters arising subsequent to the date hereof that might
affect the opinions expressed herein.
Very truly yours,
CLEARY, GOTTLIEB, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
By:
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, a partner
3
EXHIBIT D-2 - FORM OF
OPINION OF IN-HOUSE
COUNSEL OF THE COMPANY
[Effective Date]
To each of the Lenders parties
to the Credit Agreement dated
as of May 15, 2003
among The Interpublic Group of Companies, Inc.,
said Lenders and Citibank, N.A.,
as Agent for said Lenders, and
to Citibank, N.A., as Agent
364-DAY CREDIT AGREEMENT
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
3.01(d)(iv) of the
364-Day Credit Agreement, dated as of May 15, 2003 (the
"CREDIT AGREEMENT"), among The Interpublic Group of Companies, Inc. (the
"COMPANY"), the Lenders parties thereto, JPMorgan Chase Bank, as syndication
agent, UBS Warburg LLC and HSBC Bank USA, as co-documentation agents, Citigroup
Global Markets, Inc., as lead arranger and book manager, and Citibank, N.A., as
Agent for said Lenders. Terms defined in the Credit Agreement are used herein as
therein defined.
I have acted as General Counsel for the Company in connection
with the preparation, execution and delivery of the Credit Agreement.
In arriving at the opinions expressed below, I have examined
the following documents:
(1) An executed copy of the Credit Agreement.
(2) The documents furnished by the Company pursuant to
Article III of the Credit Agreement.
(3) A copy of the Restated Certificate of Incorporation
of the Company and all amendments thereto (the "CHARTER").
(4) A copy of the by-laws of the Company and all amendments
thereto (the "BY-LAWS").
(5) A certificate of the Secretary of State of Delaware, dated
__________, 2003, attesting to the continued corporate existence and
good standing of the Company in that State.
In addition, I have examined the originals, or copies
certified or otherwise identified to my satisfaction, of such other corporate
records of the Company, certificates of public officials and of officers of the
Company and such other persons as I have deemed necessary as a basis for the
opinions expressed below.
1
In rendering the opinions expressed below, I have assumed the
authenticity of all documents submitted to me as originals and the conformity to
the originals of all documents submitted to me as copies. In addition, I have
assumed and have not verified the accuracy as to factual matters of each
document I have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company in the Credit Agreement).
Based upon the foregoing and subject to the further
assumptions and qualifications set forth below, it is my opinion that:
1. The Company is a corporation validly existing and in good
standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the Company of
the Credit Agreement and the Notes to be delivered by it, and the
consummation of the transactions contemplated thereby, are within the
Company's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Charter or the By-laws
or (ii) any material contractual or legal restriction known to me
contained in any material document to which the Company is a party or
by which it is bound. The Credit Agreement and the Notes have been duly
executed and delivered on behalf of the Company.
3. To the best of my knowledge, no authorization, approval or
other action by, and no notice to or filing with, any third party is
required for the execution, delivery and performance by the Company of
the Credit Agreement and the Notes.
4. To the best of my knowledge, there are no pending or
overtly threatened actions or proceedings against the Company or any of
its Consolidated Subsidiaries before any court, governmental agency or
arbitrator that purport to affect the validity, binding effect or
enforceability of the Credit Agreement or any of the Notes or the
consummation of the transactions contemplated thereby or, except as
disclosed in the Company's reports filed with the Securities and
Exchange Commission prior to the Effective Date, that are likely to
have a materially adverse effect upon the financial condition or
operations of the Company and its Consolidated Subsidiaries taken as a
whole.
With regard to clause (ii) of paragraph 2 above, I express no
opinion as to whether the deposit of cash into the L/C Cash Deposit Account
would be permissible under the applicable lien covenants (all of which permit
the Company to create liens in an amount based on its consolidated net worth) at
the time such cash is provided.
The foregoing opinions are limited to the law of the State of
New York, the General Corporation Law of the State of Delaware and the Federal
law of the United States.
I am furnishing this opinion letter to you solely for your
benefit in connection with the Credit Agreement. This opinion letter is not to
be used, circulated, quoted or otherwise referred to for any other purpose.
Notwithstanding the foregoing, a copy of this opinion letter may be furnished
to, and relied upon by, your successors and a permitted transferee who becomes a
party to the Credit Agreement as a Lender thereunder, and you or any such
successor or transferee may show this opinion to any governmental authority
pursuant to requirements of applicable law or regulations. The opinions
expressed herein are, however, rendered on and as of the date hereof, and I
assume no obligation to advise you or any such transferee or governmental
authority or any other person, or to make any investigations, as to any legal
developments or factual matters arising subsequent to the date hereof that might
affect the opinions expressed herein.
Very truly yours,
▇▇▇▇▇▇▇▇ ▇. Camera, General Counsel
2
EXHIBIT E - FORM OF
DESIGNATION AGREEMENT
[DATE]
To each of the Lenders
parties to the Credit Agreement
(as defined below) and to Citibank, N.A.
as Agent for such Lenders
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement dated as of
May 15, 2003 among The Interpublic Group of Companies, Inc. (the "COMPANY"),
certain other borrowers parties thereto, the Lenders parties thereto, JPMorgan
Chase Bank, as syndication agent, UBS Warburg LLC and HSBC Bank USA, as
co-documentation agents, Citigroup Global Markets, Inc., as lead arranger and
book manager, and Citibank, N.A., as Agent for said Lenders (the "CREDIT
AGREEMENT"). Terms used herein and defined in the Credit Agreement shall have
the respective meanings ascribed to such terms in the Credit Agreement.
Please be advised that the Company hereby designates its
undersigned Subsidiary, ____________ ("DESIGNATED SUBSIDIARY"), as a "Designated
Subsidiary" under and for all purposes of the Credit Agreement.
The Designated Subsidiary, in consideration of each Lender's
agreement to extend credit to it under and on the terms and conditions set forth
in the Credit Agreement, does hereby assume each of the obligations imposed upon
a "Designated Subsidiary" and a "Borrower" under the Credit Agreement and agrees
to be bound by the terms and conditions of the Credit Agreement. In furtherance
of the foregoing, the Designated Subsidiary hereby represents and warrants to
each Lender as follows:
(a) The Designated Subsidiary is a corporation duly
organized, validly existing and in good standing under the
laws of ______________________.
(b) The execution, delivery and performance by the Designated
Subsidiary of this Designation Agreement, the Credit Agreement and the
Notes to be delivered by it are within the Designated Subsidiary's
corporate powers, have been duly authorized by all necessary corporate
action and do not contravene (i) the Designated Subsidiary's charter or
by-laws or (ii) any law, rule or regulation applicable to the
Designated Subsidiary or (iii) any material contractual or legal
restriction binding on the Designated Subsidiary. The Designation
Agreement and the Notes delivered by it have been duly executed and
delivered on behalf of the Designated Subsidiary.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by the
Designated Subsidiary of this Designation Agreement, the Credit
Agreement or the Notes to be delivered by it.
(d) This Designation Agreement is, and the Notes to be
delivered by the Designated Subsidiary when delivered will be, legal,
valid and binding obligations of the Designated Subsidiary enforceable
against the Designated Subsidiary in accordance with their respective
terms.
(e) There is no pending or, to the knowledge of the Designated
Subsidiary , threatened action or proceeding affecting the Designated
Subsidiary or any of its Subsidiaries before any court, governmental
1
agency or arbitrator which purports to affect the legality, validity or
enforceability of this Designation Agreement, the Credit Agreement or
any Note of the Designated Subsidiary.
This Designation Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
Very truly yours,
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By _________________________
Name:
Title:
[THE DESIGNATED SUBSIDIARY]
By__________________________
Name:
Title:
2
EXHIBIT F - FORM OF
SUBSIDIARY GUARANTY
================================================================================
SUBSIDIARY GUARANTY
BY
CERTAIN SUBSIDIARIES OF
THE INTERPUBLIC GROUP OF COMPANIES, INC.
IN FAVOR OF
THE LENDERS REFERRED TO HEREIN
AND
THE BANK OF NEW YORK, AS TRUSTEE
FOR THE BENEFIT OF THE NOTEHOLDERS LISTED ON SCHEDULE A HERETO
================================================================================
DATED AS OF [ ], 2003
TABLE OF CONTENTS
PAGE
Section 1. Guaranty 1
Section 2. Guaranty Absolute 2
Section 3. Waivers 3
Section 4. Subrogation 4
Section 5. Representations and Warranties 4
Section 6. Further Assurances 5
Section 7. No Waiver 5
Section 8. Amendments, Etc 5
Section 9. Addition and Removal of Guarantors 6
Section 10. Notices 6
Section 11. Continuing Guaranty; Transfer of Notes 7
Section 12. Severability 7
Section 13. Governing Law; Jurisdiction 7
Section 14. Taxes 7
Section 15. Execution in Counterparts 8
Section 16. Waiver of Jury Trial 9
SCHEDULES
Schedule A Noteholders
EXHIBITS
Exhibit A Accession Agreement
i
GUARANTY
This GUARANTY (this "GUARANTY"), dated as of [ ], 2003, is
made by the subsidiaries of The Interpublic Group of Companies, Inc. (the
"BORROWER") set forth on the signature pages hereof (each, a "Guarantor", and,
collectively, the "GUARANTORS"), in favor of the Lenders (as defined below) and
The Bank of New York ("BONY"), as Trustee for the benefit of the noteholders
listed on Schedule A hereto (each of the Lenders and BONY, a "GUARANTEED PARTY",
and, collectively, the "GUARANTEED PARTIES").
WHEREAS, the Borrower has entered into a Five-Year Credit
Agreement dated as of June 27, 2000 and a 364-Day Credit Agreement dated as of
May [ ], 2003 (together, as amended, supplemented or otherwise modified through
the date hereof, the "REVOLVER CREDIT AGREEMENTS") with the banks, financial
institutions and other institutional lenders parties thereto (collectively, the
"REVOLVER LENDERS") and Citibank, N.A., as agent for the Revolver Lenders
(Citibank, N.A., as agent, and the Revolver Lenders are collectively referred to
herein as the "REVOLVER CREDITORS");
WHEREAS, the Borrower has entered into five Note Purchase
Agreements with The Prudential Insurance Company of America ("PRUDENTIAL", and
together with the Revolver Creditors, the "LENDERS") dated May 26, 1994, April
28, 1995, October 31, 1996, August 18, 1997 and January 21, 1999, respectively
(collectively, as amended, supplemented or otherwise modified through the date
hereof, the "PRUDENTIAL NOTE PURCHASE AGREEMENTS", and, together with the
Revolver Credit Agreements, the "CREDIT AGREEMENTS");
WHEREAS, the Borrower has issued Zero-Coupon Convertible
Senior Notes due 2021, 7.25% Notes due 2011, 7.875% Notes due 2005 and 4.50%
Convertible Senior Notes due 2023 (collectively, the "NOTES") pursuant to a
Senior Debt Indenture with BONY, as Trustee, dated as of October 20, 2000, as
supplemented by a First Supplemental Indenture dated as of August 22, 2001, a
Second Supplemental Indenture dated as of December 14, 2001 and a Third
Supplemental Indenture dated as of March 13, 2003; and
WHEREAS, the Borrower and the Guarantors are affiliates
engaged in related businesses and the Guarantors (i) may have received and may
receive a portion of the loans extended under the Credit Agreements, (ii) may be
entitled to borrow directly under the Revolver Credit Agreements, (iii) may have
received, directly or indirectly, a portion of the proceeds from the issuance of
the Notes, (iv) from time to time receive guarantees from the Borrower in the
ordinary course of business and with respect to their own indebtedness and (v)
will have derived other substantial direct and indirect economic benefit from
the Credit Agreements and the Notes and therefore are willing to guarantee the
Obligations (as hereinafter defined);
NOW THEREFORE, in consideration of the foregoing, the
Guarantors hereby agree with and for the benefit of each Guaranteed Party as
follows:
SECTION 1. Guaranty.
(a) The Guarantors hereby unconditionally and irrevocably,
jointly and severally, guarantee, as a guarantee of payment and not of
collection, the prompt performance and payment in full by the Borrower when
due (whether at stated maturity, by acceleration or otherwise) of the
following (the "OBLIGATIONS"):
(i) all payment obligations of the Borrower under the
Credit Agreements, whether direct or indirect, absolute or
contingent, and whether for principal, interest, fees,
breakage costs, expenses, indemnification or otherwise; and
(ii) all payment obligations of the Borrower to the
noteholders listed on Schedule B hereto arising under the
Notes.
The Guarantors further agree to pay all costs, fees and expenses
(including, without limitation, reasonable fees of outside counsel)
incurred by any Guaranteed Party in enforcing any rights under this
Guaranty. If the Borrower fails to pay any of the Obligations in full
when due (whether at stated maturity, by
1
acceleration or otherwise) and any grace period for payment of any
such Obligation has expired, the Guarantors, jointly and severally,
agree to pay the unpaid portion of such Obligation within 2 business
days after receipt by each of them of written demand from the
applicable Guaranteed Party.
(b) Each Guarantor, and by its acceptance of this Guaranty,
each Guaranteed Party, hereby confirms that it is the intention of all such
persons that this Guaranty and the obligations of each Guarantor hereunder
not constitute a fraudulent transfer or conveyance for purposes of any
applicable law relating to bankruptcy, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or
state law to the extent applicable to this Guaranty and the obligations of
each Guarantor hereunder. To effectuate the foregoing intention, the
Guaranteed Parties and the Guarantors hereby irrevocably agree that the
obligations of each Guarantor under this Guaranty at any time shall be
limited to the maximum amount as will result in the obligations of such
Guarantor under this Guaranty not constituting a fraudulent transfer or
conveyance.
(c) Each Guarantor hereby unconditionally and irrevocably
agrees that in the event any payment shall be required to be made to any
Guaranteed Party under this Guaranty, such Guarantor will contribute, to
the maximum extent permitted by law, amounts to each other Guarantor with
respect to any such payment.
SECTION 2. GUARANTY ABSOLUTE.
(a) The obligations of the Guarantors are joint and several
and are those of a primary obligor, and not merely a surety, and are
independent of the Obligations. A separate action or actions may be brought
against any Guarantor whether or not an action is brought against the
Borrower, any other guarantor or other obligor in respect of the
Obligations or whether the Borrower, any other guarantor or any other
obligor in respect of the Obligations is joined in any such action or
actions.
(b) The liability of the Guarantors under this Guaranty shall
be absolute and unconditional irrespective of, and each Guarantor hereby
irrevocably waives, to the extent permitted by applicable law, any defenses
it may now have or hereafter acquire relating to any or all of the
following:
(i) any lack of genuineness, validity, legality or
enforceability of the Credit Agreements, the Notes or any
other document, agreement or instrument relating thereto or
any assignment or transfer of any thereof;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Obligations, or any waiver, indulgence, compromise, renewal,
extension, amendment, modification of, or addition, consent,
supplement to, or consent to departure from, or any other
action or inaction under or in respect of, the Credit
Agreements, the Notes or any other document, instrument or
agreement relating to the Obligations or any other instrument
or agreement referred to therein or any assignment or transfer
of any thereof;
(iii) any release or partial release of any other
guarantor or other obligor in respect of the Obligations;
(iv) any exchange, release or non-perfection of
any collateral for all or any of the Obligations, or any
release, or amendment or waiver of, or consent to
departure from, any guaranty or security, for all or any
of the Obligations;
(v) any furnishing of any additional security for
any of the Obligations;
2
(vi) the liquidation, bankruptcy, insolvency or
reorganization of the Borrower, any other guarantor or other
obligor in respect of the Obligations or any action taken with
respect to this Guaranty by any trustee or receiver, or by any
court, in any such proceeding; or
(vii) any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable
discharge of, any Guarantor.
(c) This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time payment or performance of
the Obligations, or any part thereof, is, upon the insolvency, bankruptcy
or reorganization of the Borrower or any Guarantor or otherwise pursuant to
applicable law, rescinded or reduced in amount or must otherwise be
restored or returned by any Guaranteed Party, all as though such payment or
performance had not been made.
SECTION 3. WAIVERS.
(a) To the extent permitted by applicable law, each Guarantor
hereby unconditionally and irrevocably waives promptness, diligence, notice
of acceptance and any and all other notices with respect to any of the
Obligations and this Guaranty, other than the notice provided for in
Section 1 hereof, and any requirement that any Guaranteed Party protect,
secure, perfect or insure any security interest in or any lien on any
property subject thereto or exhaust any right or take any action against
the Borrower, any other guarantor or any other person or any collateral or
security or any balance of any deposit accounts or credit on the books of
any of the Lenders in favor of the Borrower or any Guarantor.
(b) Each Guarantor hereby unconditionally and irrevocably
waives any right to revoke this Guaranty and acknowledges that this
Guaranty is continuing in nature and applies to all Obligations, whether
existing now or in the future.
(c) Each Guarantor hereby unconditionally and irrevocably
waives (i) any defense arising by reason of any claim or defense based upon
an election of remedies by any Guaranteed Party that in any manner impairs,
reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of such
Guarantor or other rights of such Guarantor to proceed against the
Borrower, any other guarantor or any other person or any collateral and
(ii) any defense based on any right of set-off or counterclaim against or
in respect of the obligations of such Guarantor hereunder.
(d) Each Guarantor hereby unconditionally and irrevocably
waives any duty on the part of any Guaranteed Party to disclose to such
Guarantor any matter, fact or thing relating to the business, condition
(financial or otherwise), operations, performance, properties or prospects
of the Borrower or any of its subsidiaries now or hereafter known by such
Guaranteed Party.
Each Guarantor acknowledges that it will receive substantial direct and
indirect benefits from the financing arrangements contemplated by the
Credit Agreements and the Notes and that the waivers set forth in Section 2
and this Section 3 are knowingly made in contemplation of such benefits.
SECTION 4. SUBROGATION. The Guarantors will not exercise any
rights which they may acquire by way of rights of subrogation under this
Guaranty, by any payment made hereunder or otherwise, until the latest of (i)
all the Obligations shall have been irrevocably paid in full and in cash, (ii)
the Credit Agreements shall have been terminated and (iii) the Notes shall have
been cancelled.
SECTION 5. REPRESENTATIONS AND WARRANTIES. The Guarantors
jointly and severally represent and warrant to the Guarantied Parties as
follows:
(a) EXISTENCE AND POWER. Each Guarantor is a [corporation]
duly formed and validly existing under the laws of the jurisdiction
indicated on the signature pages hereof opposite its name, is in good
standing
3
in such jurisdiction and has all requisite power and authority to
own its property and to carry on its business as now conducted.
(b) AUTHORITY. Each Guarantor has full power and authority to
execute and deliver this Guaranty and to perform its obligations hereunder,
all of which have been duly authorized by all proper and necessary action
of the Guarantor.
(c) AUTHORITY OF OFFICERS. The officer of each Guarantor who
is executing this Guaranty is properly in office and is duly authorized to
execute the same.
(d) BINDING AGREEMENT. This Guaranty constitutes the legal,
valid and binding obligation of each Guarantor enforceable against it in
accordance with its terms except as such enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally.
(e) LITIGATION. There are no actions, suits or arbitration
proceedings pending or, to the knowledge of any Guarantor, threatened
against any Guarantor, at law or in equity, which, individually or in the
aggregate, if adversely determined, would materially adversely affect the
financial condition of any Guarantor or materially impair the ability of
such Guarantor to perform its obligations under this Guaranty.
(f) NO CONFLICTING LAW OR AGREEMENTS. The execution, delivery
and performance by each Guarantor of this Guaranty (i) do not violate any
provision of the articles of incorporation or by-laws (or equivalent
constituent documents) of such Guarantor; (ii) do not violate in any
material respect any order, decree or judgment, or any provision of any
statute, rule or regulation applicable to or binding on such Guarantor or
any of its property; and (iii) do not violate or conflict with, result in a
breach of or constitute (with notice or lapse of time or both) a material
default under, any material mortgage, indenture, contract or other material
agreement to which such Guarantor is a party, or by which any of its
property is bound.
SECTION 6. FURTHER ASSURANCES. The Guarantors agree that at
any time and from time to time, at the expense of the Guarantors, the Guarantors
will promptly execute and deliver all further instruments and documents, and
take all further action, that may be necessary or desirable, or that the
Guaranteed Parties may reasonably request, to enable the Guaranteed Parties to
protect and to exercise and enforce their respective rights and remedies
hereunder.
Section 7. NO WAIVER. No failure on the part of any Guaranteed
Party to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any right
hereunder 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. AMENDMENTS, ETC. Except as set forth in Section 9
hereof, no amendment or waiver of any provision of this Guaranty, nor consent to
any departure by the Guarantors herefrom, shall in any event be effective unless
the same shall be in writing and signed by (a) each Guarantor, (b) so long as
the Revolver Credit Agreements are in effect, Citibank, N.A., acting at the
direction of the Required Lenders under (and as defined in) each such Revolving
Credit Agreement and (c) so long as the Prudential Note Purchase Agreements are
in effect, Prudential; PROVIDED, HOWEVER, that if at any time it becomes
necessary for this Guaranty to be qualified under the Trust Indenture Act of
1939, as amended, this Guaranty may be amended without any further action on the
part of any Guarantor or any Guaranteed Party in order to incorporate such
provisions as would cause it to be so qualified. Any amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which made or given.
SECTION 9. ADDITION AND REMOVAL OF GUARANTORS.
(a) In the event that any Guarantor is dissolved or ceases to
be a consolidated subsidiary of the Borrower, (i) such Guarantor shall,
automatically and without any further action on behalf of any of the
4
Guarantors or the Guaranteed Parties, cease to be a Guarantor and (ii) the
definition of "Guarantor" shall, automatically and without any further
action on behalf of any of the Guarantors or the Guaranteed Parties, be
amended to remove such Guarantor therefrom.
(b) In the event that any consolidated subsidiary of the
Borrower wishes to become a Guarantor, such consolidated subsidiary shall
execute and deliver an accession agreement substantially in the form of
Exhibit A hereto (an "ACCESSION AGREEMENT"). Upon execution and delivery of
such Accession Agreement, and without any further action on behalf of any
of the Guarantors or the Guaranteed Parties, (i) such consolidated
subsidiary shall become a Guarantor and (ii) the definition of "Guarantor"
shall automatically be amended to include such consolidated subsidiary
therein, in each case as of the date of such Accession Agreement.
SECTION 10. NOTICES. All notices, requests and other
communications provided for hereunder shall be in writing and mailed by
overnight delivery, transmitted by facsimile or hand delivered:
(i) if to any of the Revolver Creditors, addressed ▇/▇
▇▇▇▇▇▇▇▇, N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: May ▇▇▇▇ (Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇);
(ii) if to Prudential, addressed c/o Prudential Capital
Group, 1114 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Facsimile: (212)
626-2077);
(iii) if to BONY, addressed to The Bank of New York, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Trustee Administration
(Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇);
(iv) if to the Guarantors, at their respective addresses
set forth on the signature page hereof, with a copy to the
Borrower at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Vice President and Treasurer (Facsimile: (212)
621-5748);
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and other
communications shall be effective (x) upon receipt thereof, when mailed by
overnight delivery or hand delivered or (y) upon receipt of confirmation of
facsimile transmission, when transmitted by facsimile.
SECTION 11. CONTINUING GUARANTY; TRANSFER OF NOTES. This
Guaranty is a continuing guaranty and shall (a) remain in full force and effect
until the latest of (i) payment in full of the Obligations and all other amounts
payable under this Guaranty, (ii) the termination of the Credit Agreements and
(iii) the cancellation of the Notes; (b) be binding upon the Guarantors and
their respective successors and assigns; and (c) inure to the benefit of the
Guaranteed Parties and their respective successors and assigns. Without limiting
the generality of clause (c) of the immediately preceding sentence, if any
Revolver Lender assigns or otherwise transfers all or any portion of its rights
and obligations under the applicable Revolver Credit Agreement (including,
without limitation, all or any portion of its commitments, the advances owing to
it and the note or notes held by it) to any other person in accordance with the
terms thereof, then such other person shall thereupon become vested with all the
benefits in respect of such transferred rights and obligations granted to such
Guaranteed Party herein.
SECTION 12. SEVERABILITY. If for any reason any provision or
provisions hereof are determined to be invalid and contrary to any existing or
future law, such invalidity shall not, to the fullest extent permitted by law,
impair the operation of or effect of those portions of this Guaranty that are
valid.
SECTION 13. GOVERNING LAW; Jurisdiction.
5
(a) This Guaranty shall be governed by, and construed and
enforced in accordance with, the law of the State of New York.
(b) Any legal action or proceeding with respect to this
Guaranty may be brought in the courts of the State of New York or of the
United States of America for the Southern District of New York, and by
execution and delivery of this Guaranty, each Guarantor hereby consents,
for itself and in respect of its property, to the non-exclusive
jurisdiction of the aforesaid courts. To the fullest extent permitted by
law, each Guarantor hereby irrevocably waives any objection, including
without limitation, any objection to the laying of venue or based on the
grounds of FORUM NON CONVENIENS, which it may now or hereafter have to the
bringing of any action or proceeding in such jurisdiction in respect of
this Guaranty or any document related hereto. Notwithstanding any of the
foregoing, any suit, action or proceeding against the Guarantors based on
this Guaranty may be instituted by any Guaranteed Party in any court of
competent jurisdiction.
SECTION 14. TAXES. All payments to be made by a Guarantor
under this Guaranty shall be made without set-off or counterclaim and without
deduction for any taxes unless such Guarantor is required by law to make
payments subject to such taxes. All taxes in respect of payments made under this
Guaranty payable by a Guarantor shall be paid by such Guarantor when due and in
any event prior to the date on which penalties attach thereto. Such Guarantor
will indemnify each Guaranteed Party with respect to such taxes paid by such
Guaranteed Party; PROVIDED that, if such Guaranteed Party receives a refund of
any portion of such taxes, it shall pay the amount of any such refund to such
Guarantor. In addition, if any taxes or amounts in respect thereof must be
deducted from any amounts payable or paid by such Guarantor hereunder, such
Guarantor shall pay at the same time as such payment is due such additional
amounts as may be necessary to ensure that each Guaranteed Party receives a net
amount equal to the full amount which it would have received had payment not
been made subject to such tax.
SECTION 15. EXECUTION IN COUNTERPARTS. This Guaranty and each
amendment, waiver and consent with respect hereto may be executed in any number
of counterparts and by different parties hereto and thereto 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.
Delivery of an executed counterpart of a signature page to this Guaranty by
telecopier shall be effective as delivery of an original executed counterpart of
this Guaranty.
6
SECTION 16. WAIVER OF JURY TRIAL. EACH GUARANTOR WAIVES ANY
RIGHT IT MAY HAVE TO A JURY TRIAL IN CONNECTION WITH ANY ACTION, SUIT OR
PROCEEDING ARISING OUT OF OR RELATED IN ANY WAY TO THIS GUARANTY.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
[GUARANTOR] - [STATE OF INCORPORATION] [GUARANTOR] - [STATE OF INCORPORATION]
By: By:
----------------------------------------- ------------------------------------------
Title: Title:
----------------------------------------- ------------------------------------------
Address: Address:
----------------------------------------- ------------------------------------------
Facsimile: Facsimile:
----------------------------------------- ------------------------------------------
[GUARANTOR] - [STATE OF INCORPORATION] [GUARANTOR] - [STATE OF INCORPORATION]
By: By:
----------------------------------------- ------------------------------------------
Title: Title:
----------------------------------------- ------------------------------------------
Address: Address:
----------------------------------------- ------------------------------------------
Facsimile: Facsimile:
----------------------------------------- ------------------------------------------
[GUARANTOR] - [STATE OF INCORPORATION] [GUARANTOR] - [STATE OF INCORPORATION]
By: By:
----------------------------------------- ------------------------------------------
Title: Title:
----------------------------------------- ------------------------------------------
Address: Address:
----------------------------------------- ------------------------------------------
Facsimile: Facsimile:
----------------------------------------- ------------------------------------------
[GUARANTOR] - [STATE OF INCORPORATION] [GUARANTOR] - [STATE OF INCORPORATION]
By: By:
----------------------------------------- ------------------------------------------
Title: Title:
----------------------------------------- ------------------------------------------
Address: Address:
----------------------------------------- ------------------------------------------
Facsimile: Facsimile:
----------------------------------------- ------------------------------------------
7
SCHEDULE A
NOTEHOLDERS
Holders of the 4.50% Convertible Senior Notes due 2023
Holders of the Zero-Coupon Convertible Senior Notes due
2021
Holders of the 7.25% Notes due 2011
Holders of the 7.875% Notes due 2005
1
EXHIBIT A
ACCESSION AGREEMENT
By execution of this Accession Agreement, the undersigned
consolidated subsidiary of The Interpublic Group of Companies, Inc. (the
"BORROWER") hereby agrees, as of the date noted below, to become a party to and
to be bound by all of the terms and conditions of the Guaranty, dated as of [ ],
2003, by certain subsidiaries of the Borrower in favor of the lenders named
therein and The Bank of New York, as trustee for the benefit of the noteholders
named therein (the "GUARANTY") to the same extent as each of the other
Guarantors thereunder. Capitalized terms used but not defined herein shall have
the respective meanings ascribed thereto in the Guaranty. By execution of this
Accession Agreement, the undersigned shall have all the rights of a Guarantor
and shall observe all the obligations of a Guarantor, in each case as specified
in the Guaranty. Delivery of an executed counterpart of a signature page to this
Accession Agreement by telecopier shall be effective as delivery of an original
executed counterpart of this Accession Agreement.
[DATE]
[GUARANTOR] - [STATE OF INCORPORATION]
By:
---------------------------------------
Title:
------------------------------------
Address:
----------------------------------
Facsimile:
--------------------------------
1
EXHIBIT G-1 - FORM OF
OPINION OF OUTSIDE
COUNSEL OF THE
SUBSIDIARY GUARANTOR
[Date]
To each of the Lenders in the below-referenced
Credit Agreement
[NAME OF THE SUBSIDIARY GUARANTOR]
Ladies and Gentlemen:
We have acted as special counsel to [name of the Subsidiary
Guarantor] (the "SUBSIDIARY GUARANTOR") in connection with the preparation,
execution and delivery of the subsidiary guaranty (the "SUBSIDIARY GUARANTY")
pursuant to Section 5.01(i) of the 364-Day Credit Agreement, dated as of May 15,
2003 (the "CREDIT AGREEMENT"), among The Interpublic Group of Companies, Inc.
(the "COMPANY"), the Lenders parties thereto, JPMorgan Chase Bank, as
syndication agent, USA Warburg LLC and HSBC Bank USA, as co-documentation
agents, Citigroup Global Markets Inc., as lead arranger and book manager, and
Citibank, N.A., as Agent for said Lenders.
In arriving at the opinions expressed below, we have examined
the following documents:
(1) an executed copy of the Credit Agreement;
(2) an executed copy of the Subsidiary Guaranty; and
(3) executed copies of the other documents furnished by the
Subsidiary Guarantor pursuant to Section 5.01(i) of the Credit
Agreement.
In addition, we have reviewed the originals or copies
certified or otherwise identified to our satisfaction of all such corporate
records of the Subsidiary Guarantor and such other instruments and other
certificates of public officials, officers and representatives of the Subsidiary
Guarantor and such other persons, and we have made such investigations of law,
as we have deemed necessary as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. In addition, we have
assumed and have not verified the accuracy as to factual matters of each
document we have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company in the Credit Agreement and of the
Subsidiary Guarantor in the Subsidiary Guaranty).
Based upon the foregoing and subject to the further
assumptions and qualifications set forth below, it is our opinion that:
1. The Subsidiary Guarantor has the corporate power to enter
into the Subsidiary Guaranty and to perform its obligations
thereunder.
1
2. The execution and delivery by the Subsidiary Guarantor of
the Subsidiary Guaranty have been duly authorized by all necessary
corporate action of the Subsidiary Guarantor.
3. The performance by the Subsidiary Guarantor of its
obligations under the Subsidiary Guaranty (a) does not require any
consent, approval, authorization, registration or qualification of or
with any governmental authority of the United States, [the State of
Delaware or the State of New York], and (b) does not result in a
violation of any applicable United States federal [or New York State
law, rule or regulation or the Delaware General Corporation].
4. The Subsidiary Guaranty is a valid, binding and
enforceable obligation of the Subsidiary Guarantor.
Insofar as the foregoing opinions relate to the validity,
binding effect or enforceability of any agreement or obligation of the
Subsidiary Guarantor, (a) we have assumed that each party to such agreement or
obligation has satisfied those legal requirements that are applicable to it to
the extent necessary to make such agreement or obligation enforceable against it
(except that no such assumption is made as to the Subsidiary Guarantor regarding
matters of the federal law of the United States of America[, the law of the
State of New York or the General Corporation Law of the State of Delaware]) and
(b) such opinions are subject to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and to general principles of equity.
We have assumed that any assignments made by or among the
guaranteed parties of their rights and obligations under the Subsidiary Guaranty
will not contravene New York Judiciary Law Section 489 (which makes it a
criminal offense to take an assignment of a debt obligation with the intent of
and for the purpose of bringing an action or proceeding thereon).
We note that the designations in Section 13(b) of the
Subsidiary Guaranty are (notwithstanding the waiver contained in Section 14(b))
subject to the power of such federal court to transfer actions pursuant to 28
U.S.C. ss.1404(a) or to dismiss such actions or proceedings on the grounds that
such a federal court is an inconvenient forum for such action or proceeding.
With respect to the first sentence of Section 13(b) of the
Subsidiary Guaranty, we express no opinion as to the subject matter jurisdiction
of any United States federal court to adjudicate any action relating to the
Subsidiary Guaranty where jurisdiction based on diversity of citizenship under
28 U.S.C. ss.1332 does not exist.
The opinion expressed in paragraph 3 above relates only to
those laws, rules and regulations that, in our experience, are normally
applicable to transactions of the type referred to in the Subsidiary Guaranty.
The foregoing opinions are limited to the law of the [State of
New York, the General Corporation Law of the State of Delaware] and the federal
law of the United States, but we express no opinion as to any state securities
or Blue Sky laws or United States federal securities laws.
2
We are furnishing this opinion letter to you solely for your
benefit in connection with the Subsidiary Guaranty. This opinion letter is not
to be used, circulated, quoted or otherwise referred to for any other purpose.
Notwithstanding the foregoing, a copy of this opinion letter may be furnished
to, and relied upon by, your successors and a permitted transferee who becomes a
party to the Credit Agreement as a Lender thereunder, and you or any such
successor or transferee may show this opinion to any governmental authority
pursuant to requirements of applicable law or regulations. The opinions
expressed herein are, however, rendered on and as of the date hereof, and we
assume no obligation to advise you or any such transferee or governmental
authority or any other person, or to make any investigations, as to any legal
developments or factual matters arising subsequent to the date hereof that might
affect the opinions expressed herein.
Very truly yours,
3
EXHIBIT G-2 - FORM OF
OPINION OF IN-HOUSE COUNSEL
Of THE SUBSIDIARY GUARANTOR
[Date]
To each of the Lenders parties
to the Credit Agreement dated
as of May 15, 2003
among The Interpublic Group of Companies, Inc.,
said Lenders and Citibank, N.A.,
as Agent for said Lenders, and
to Citibank, N.A., as Agent
[NAME OF THE SUBSIDIARY GUARANTOR]
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 5.01(i)
of the 364-Day Credit Agreement, dated as of May 15, 2003 (the "CREDIT
AGREEMENT"), among The Interpublic Group of Companies, Inc. (the "COMPANY"), the
Lenders parties thereto, JPMorgan Chase Bank, as syndication agent, UBS Warburg
LLC and HSBC Bank USA, as co-documentation agents, Citigroup Global Markets
Inc., as lead arranger and book manager, and Citibank, N.A., as Agent for said
Lenders. Terms defined in the Credit Agreement are used herein as therein
defined.
I have acted as [General Counsel] for [name of the Subsidiary
Guarantor] (the "SUBSIDIARY GUARANTOR") in connection with the preparation,
execution and delivery of the Subsidiary Guaranty.
In arriving at the opinions expressed below, I have examined
the following documents:
(1) An executed copy of the Credit Agreement.
(2) An executed copy of the Subsidiary Guaranty.
(3) The other documents furnished by the Subsidiary Guarantor
pursuant to Section 5.01(i) of the Credit Agreement.
(4) A copy of the [Articles] [Certificate] of Incorporation of
the Subsidiary Guarantor and all amendments thereto (the "CHARTER").
(5) A copy of the by-laws of the Subsidiary Guarantor and all
amendments thereto (the "BY-LAWS").
(6) A certificate of the Secretary of State of [ ], dated
__________, 2003, attesting to the continued corporate existence and
good standing of the Subsidiary Guarantor in that State.
4
In addition, I have examined the originals, or copies certified or
otherwise identified to my satisfaction, of such other corporate records of the
Subsidiary Guarantor, certificates of public officials and of officers of the
Subsidiary Guarantor and such other persons as I have deemed necessary as a
basis for the opinions expressed below.
In rendering the opinions expressed below, I have assumed the
authenticity of all documents submitted to me as originals and the conformity to
the originals of all documents submitted to me as copies. In addition, I have
assumed and have not verified the accuracy as to factual matters of each
document I have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company in the Credit Agreement and of the
Subsidiary Guarantor in the Subsidiary Guaranty).
Based upon the foregoing and subject to the further
assumptions and qualifications set forth below, it is my opinion that:
1. The Subsidiary Guarantor is a corporation validly existing
and in good standing under the laws of the State of [ ].
2. The execution, delivery and performance by the Subsidiary
Guarantor of the Subsidiary Guaranty to be delivered by it, and the
consummation of the transactions contemplated thereby, are within the
Subsidiary Guarantor's corporate powers, have been duly authorized by
all necessary corporate action, and do not contravene (i) the Charter
or the By-laws or (ii) any material contractual or legal restriction
known to me contained in any material document to which the Subsidiary
Guarantor is a party or by which it is bound. The Subsidiary Guaranty
has been duly executed and delivered on behalf of the Subsidiary
Guarantor.
3. To the best of my knowledge, no authorization, approval or
other action by, and no notice to or filing with, any third party is
required for the execution, delivery and performance by the Subsidiary
Guarantor of the Subsidiary Guaranty.
4. To the best of my knowledge, there are no pending or
overtly threatened actions or proceedings against the Subsidiary
Guarantor or any of its subsidiaries before any court, governmental
agency or arbitrator that purport to affect the validity, binding
effect or enforceability of the Subsidiary Guaranty or the consummation
of the transactions contemplated thereby or that are likely to have a
materially adverse effect upon the financial condition or operations of
the Subsidiary Guarantor and its subsidiaries taken as a whole.
The foregoing opinions are limited to the law of the State of
[New York][, the General Corporation Law of the State of Delaware] and the
Federal law of the United States.
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I am furnishing this opinion letter to you solely for your
benefit in connection with the Subsidiary Guaranty. This opinion letter is not
to be used, circulated, quoted or otherwise referred to for any other purpose.
Notwithstanding the foregoing, a copy of this opinion letter may be furnished
to, and relied upon by, your successors and a permitted transferee who becomes a
party to the Credit Agreement as a Lender thereunder, and you or any such
successor or transferee may show this opinion to any governmental authority
pursuant to requirements of applicable law or regulations. The opinions
expressed herein are, however, rendered on and as of the date hereof, and I
assume no obligation to advise you or any such transferee or governmental
authority or any other person, or to make any investigations, as to any legal
developments or factual matters arising subsequent to the date hereof that might
affect the opinions expressed herein.
Very truly yours,
6