EXHIBIT 10.28
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U.S. $400,000,000
CREDIT AGREEMENT
Dated as of May 8, 1998
YOUNG & RUBICAM INC.
and the other Borrowers named herein or
that hereafter become Borrowers hereunder
as Borrowers
THE BANKS NAMED HEREIN
as Banks
CITIBANK, N.A.
as Administrative Agent and Documentation Agent
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
as Syndication Agent
CITICORP SECURITIES, INC.
as Arranger
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
as Co-Arranger
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[Exhibit C-1 is a photocopy of Opinion of General Counsel to the Company as
executed and delivered. Exhibit C-2 is a photocopy of Opinion of Special
Counsel to the Company as executed and delivered. Exhibit D is a photocopy of
Opinion of Special New York Counsel to the Administrative Agent as executed and
delivered.]
TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS................................................................1
SECTION 1.02. COMPUTATION OF TIME PERIODS.........................................................18
SECTION 1.03. ACCOUNTING TERMS....................................................................18
SECTION 1.04. CURRENCIES AND TYPES OF ADVANCES....................................................18
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE REVOLVING CREDIT ADVANCES.......................................................19
SECTION 2.02. SWING LINE ADVANCES.................................................................22
SECTION 2.03. FEES................................................................................24
SECTION 2.04. CHANGES IN COMMITMENTS..............................................................24
SECTION 2.05. REPAYMENT OF ADVANCES...............................................................26
SECTION 2.06. INTEREST............................................................................27
SECTION 2.07. ADDITIONAL INTEREST ON LIBO RATE ADVANCES...........................................28
SECTION 2.08. INTEREST RATE DETERMINATIONS; CHANGES IN PRICING LEVELS.............................28
SECTION 2.09. CONVERSION AND CONTINUATION OF ADVANCES.............................................29
SECTION 2.10. OPTIONAL AND MANDATORY PREPAYMENTS OF ADVANCES......................................31
SECTION 2.11. INCREASED COSTS.....................................................................31
SECTION 2.12. ILLEGALITY..........................................................................33
SECTION 2.13. PAYMENTS AND COMPUTATIONS...........................................................33
SECTION 2.14. TAXES...............................................................................35
SECTION 2.15. PRO RATA TREATMENT..................................................................37
SECTION 2.16. SHARING OF PAYMENTS, ETC............................................................38
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. CONDITIONS PRECEDENT TO INITIAL BORROWING BY THE COMPANY............................38
SECTION 3.02. CONDITIONS PRECEDENT TO INITIAL BORROWING BY SUBSIDIARY
BORROWERS PARTY TO THIS AGREEMENT ON THE CLOSING DATE..............................................40
SECTION 3.03. CONDITIONS PRECEDENT TO EACH BORROWING..............................................40
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES......................................................41
ARTICLE V
COVENANTS OF THE BORROWERS
Section Page
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SECTION 5.01. AFFIRMATIVE COVENANTS...............................................................47
SECTION 5.02. NEGATIVE COVENANTS..................................................................52
SECTION 5.03 FINANCIAL COVENANTS.................................................................57
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT...................................................................57
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. AUTHORIZATION AND ACTION............................................................60
SECTION 7.02. ADMINISTRATIVE AGENT'S RELIANCE, ETC................................................60
SECTION 7.03. CITIBANK AND AFFILIATES.............................................................61
SECTION 7.04. BANK CREDIT DECISION................................................................61
SECTION 7.05. INDEMNIFICATION.....................................................................61
SECTION 7.06. SUCCESSOR ADMINISTRATIVE AGENT......................................................61
SECTION 7.07. SYNDICATION AGENT, ARRANGER AND CO-ARRANGER.........................................62
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. AMENDMENTS, ETC.....................................................................62
SECTION 8.02. NOTICES, ETC........................................................................63
SECTION 8.03. NO WAIVER; REMEDIES.................................................................63
SECTION 8.04. COSTS, EXPENSES AND INDEMNIFICATION.................................................63
SECTION 8.05. RIGHT OF SET-OFF....................................................................65
SECTION 8.06. BINDING EFFECT......................................................................65
SECTION 8.07. ASSIGNMENTS AND PARTICIPATIONS......................................................65
SECTION 8.08. GOVERNING LAW; SUBMISSION TO JURISDICTION...........................................68
SECTION 8.09. SEVERABILITY........................................................................69
SECTION 8.10. EXECUTION IN COUNTERPARTS...........................................................69
SECTION 8.11. SURVIVAL............................................................................69
SECTION 8.12. WAIVER OF JURY TRIAL................................................................69
SECTION 8.13. CONFIDENTIALITY.....................................................................69
SECTION 8.14. EUROPEAN MONETARY UNION.............................................................70
SECTION 8.15. ADDITIONAL SUBSIDIARY BORROWERS.....................................................71
SECTION 8.16. WAIVER OF IMMUNITY...................................................................71
SECTION 8.17. JUDGMENT CURRENCY....................................................................71
SECTION 8.18. LIMITATION ON FOREIGN BORROWER OBLIGATIONS..........................................72
SECTION 8.19. AFFILIATES..........................................................................72
ARTICLE IX
Section Page
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GUARANTEE
SECTION 9.01. THE GUARANTEE.......................................................................73
SECTION 9.02. OBLIGATIONS UNCONDITIONAL...........................................................73
SECTION 9.03. REINSTATEMENT.......................................................................74
SECTION 9.04. SUBROGATION.........................................................................74
SECTION 9.05. REMEDIES............................................................................74
SECTION 9.06. CONTINUING GUARANTEE................................................................75
SECTION 9.07. INSTRUMENT FOR THE PAYMENT OF MONEY.................................................75
SCHEDULES
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Schedule I - ERISA Matters
Schedule II - Existing Liens
EXHIBITS
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Exhibit A - Form of Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Swing Line Borrowing
Exhibit C-1 - Form of Opinion of General Counsel to the Company
Exhibit C-2 - Form of Opinion of Special Counsel to the Company
Exhibit D - Form of Opinion of Special New York Counsel to the Administrative
Agent
Exhibit E - Form of Assignment and Acceptance
Exhibit F - Form of Subsidiary Borrower Supplement
CREDIT AGREEMENT dated as of May 8, 1998, among YOUNG & RUBICAM INC., a
Delaware corporation (the "Company"), the subsidiaries of the Company listed on
the signature pages hereto under the caption "Subsidiary Borrowers" and each
other subsidiary of the Borrower that hereafter becomes a Subsidiary Borrower
hereunder as provided in Section 8.15 (the "Subsidiary Borrowers" and, together
with the Company, the "Borrowers"), the banks (the "Banks") listed on the
signature pages hereof, CITIBANK, N.A. ("Citibank") as administrative agent (in
such capacity, the "Administrative Agent") for the Banks hereunder, and Bank of
America National Trust and Savings Association as syndication agent (in such
capacity, the "Syndication Agent").
The Borrowers have requested that the Banks make loans to them in an
aggregate principal amount up to but not exceeding $400,000,000 at any one time
outstanding in Dollars and/or in certain other Approved Currencies (as
hereinafter defined) for general corporate purposes, including the making of
acquisitions and repayment of the Debt (as hereinafter defined) under the
Existing Credit Agreement (as hereinafter defined), and the Banks are prepared
to make such loans upon the terms and conditions hereof. Accordingly, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acquisition" shall mean any transaction, or any series of related
transactions, consummated after the date of this Agreement, by which the
Company and/or any of its Subsidiaries (a) acquires any going business or
all or substantially all of the Property of any firm, corporation or
division thereof, whether through the purchase of assets, merger or
otherwise, (b) directly or indirectly acquires (in one transaction or as
the most recent transaction in a series of transactions) control of at
least a majority of Voting Shares of another Person or (c) directly or
indirectly acquires control of a 50% or more ownership interest in any
partnership, joint venture or other entity, or of any general partnership
(or equivalent) interest in any such entity.
"Administrative Agent's Account" shall mean, for each Approved
Currency, an account in respect of such Approved Currency designated by the
Administrative Agent in a notice to the Company and the Banks.
"Advance" means a Revolving Credit Advance or a Swing Line Advance.
Credit Agreement
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"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person. For purposes of this definition, the term "control" (including
the terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to vote
10% or more of the Voting Shares of such Person or to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of such Voting Shares, by contract or otherwise.
"Alternate Currency" means any Foreign Currency that (a) is dealt with
in the London interbank deposit market, (b) is freely transferable and
convertible into Dollars in the London foreign exchange market and
available to all of the Banks and (c) no central bank or other governmental
authorization in the country of issue of such currency is required to
permit use of such Foreign Currency by any Bank for making any Advance
hereunder and/or to permit the relevant Borrower to borrow and repay the
principal thereof and to pay the interest thereon, unless such
authorization has been obtained and is in full force and effect.
"Applicable Facility Fee Rate" for any Pricing Level Period means the
rate set forth below opposite the reference to such Pricing Level Period:
Applicable
Pricing Level Facility
Period Fee Rate (% p.a.)
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Pricing Level 1 Period 0.125%
Pricing Level 2 Period 0.150%
Pricing ▇▇▇▇▇ ▇ Period 0.200%
Each change in the Applicable Facility Fee Rate resulting from a Pricing
Level Change shall be effective on the effective date of such Pricing Level
Change. The Applicable Facility Fee Rate at the Closing Date and until the
first Pricing Level Change will be 0.150% per annum.
"Applicable Lending Office" means, with respect to each Bank, for each
Currency and Type of Advance, the Domestic Lending Office of such Bank (or
of an Affiliate of such Bank) in the case of a Base Rate Advance and the
LIBO Lending Office of such Bank (or of an Affiliate of such Bank) in the
case of a LIBO Rate Advance.
"Applicable Margin" in respect of any Advance for any Pricing Level
Period means the rate for the respective Type of Advance set forth below
opposite the reference to such Pricing Level Period:
Credit Agreement
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Base Rate LIBO
Pricing Level Advances Rate Advances
Period (% p.a.) (% p.a.)
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Pricing ▇▇▇▇▇ ▇ Period 0.0000% 0.2750%
Pricing ▇▇▇▇▇ ▇ Period 0.0000% 0.3000%
Pricing Level 3 Period 0.0000% 0.3000%
Each change in the Applicable Margin resulting from a Pricing Level Change
shall take effect on the effective date of such Pricing Level Change. The
Applicable Margin at the Closing Date and until the first Pricing Level
Change will be (a) 0.0000% per annum for Base Rate Advances and (b) 0.3000%
per annum for LIBO Rate Advances.
"Approved Currency" means Dollars, or, subject to Section 8.14, any
Specified Eurocurrency or any Alternate Currency.
"Approved Foreign Currency" means an Approved Currency other than
Dollars.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Bank and an assignee, and accepted by the Administrative Agent,
in substantially the form of Exhibit E.
"Banks" means the Banks listed on the signature pages hereof, and each
Person that shall become a party hereto pursuant to Section 2.04(a) or
Section 8.07(a), (b) and (c) and, for purposes of Sections 2.01, 2.05,
2.06, 2.07, 2.08, 2.09, 2.10, 2.11, 2.12, 2.13, 2.14, 2.15, 2.16 and
Article IX and any related definitions used in any of such Sections or
Article IX, each Affiliate of a Bank that has made a Revolving Credit
Advance to a Foreign Borrower pursuant to Section 2.01(a)(ii); provided
that, anything in this Agreement to the contrary notwithstanding, no such
Affiliate shall have a Commitment hereunder.
"BARS" means BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
"Base Rate" means, for any period, a fluctuating interest rate per
annum in effect from time to time which rate per annum shall at all times
be equal to the highest of:
(a) the rate of interest announced publicly by Citibank in New York,
New York, from time to time, as Citibank's base rate;
(b) 0.50% per annum above the Federal Funds Rate; and
(c) the sum (adjusted to the nearest 1/16 of one percent or, if there
is no nearest 1/16 of one percent, to the next higher 1/16 of one
percent) of
Credit Agreement
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(i) 0.50% per annum plus (ii) the rate obtained by dividing (x)
the latest three-week moving average of secondary market morning
offering rates in the United States for three-month certificates
of deposit of major United States money center banks, such
three-week moving average (adjusted to the basis of a year of 365
days) being determined weekly on each Monday (or, if such day is
not a Business Day, on the next succeeding Business Day) for the
three-week period ending on the previous Friday by Citibank on
the basis of such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank of New York
or, if such publication shall be suspended or terminated, on the
basis of quotations for such rates received by Citibank from
three New York certificate of deposit dealers of recognized
standing selected by Citibank by (y) a percentage equal to 100%
minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-mon Dollar non-personal
time deposits in the United States plus (iii) the average during
such three-week period of the annual assessment rates estimated
by Citibank for determining the then current annual assessment
rate payable by Citibank to the Federal Deposit Insurance
Corporation (or any successor) for insuring Dollar deposits of
Citibank in the United States.
Each change in any interest rate provided for herein based upon the Base
Rate resulting from a change in the Base Rate shall take effect at the time
of such change in the Base Rate.
"Base Rate Advance" means, at any time, an Advance which bears
interest at the Base Rate.
"Borrowing" means a Revolving Credit Borrowing or a Swing Line
Borrowing.
"Business Day" means a day of the year (a) on which banks are not
required or authorized to close in New York, New York, (b) if the
applicable Business Day relates to any LIBO Rate Advance, on which dealings
in deposits denominated in the Currency of such LIBO Rate Advance are
carried on in the London interbank market, and (c) if such day relates to a
Borrowing of, a payment or prepayment of principal of or interest on, or
the Interest Period for, any Advance denominated in any Foreign Currency or
a notice by the Borrower with respect to any such Borrowing, payment,
prepayment or Interest Period, that is also a day on which commercial banks
settle payments in the Principal Financial Center for the Currency in which
such Advance is denominated and in which the London foreign exchange market
settles payments in such Currency.
Credit Agreement
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"Capital Lease Obligations" means, as to any Person, the obligations
of such Person to pay rent or other amounts under a lease of (or other
agreement conveying the right to use) real and/or personal Property which
obligations are required to be classified and accounted for as a capital
lease on a balance sheet of such Person under GAAP and, for purposes of
this Agreement, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP.
"Cash Equivalents" means (a) securities with maturities of one year or
less from the date of acquisition thereof issued or fully guaranteed or
insured by the United States Government or any agency thereof, (b)
certificates of deposit and Eurodollar time deposits with maturities of one
year or less from the date of acquisition thereof and overnight bank
deposits of any Bank or of any commercial bank having capital and surplus
in excess of $500,000,000, (c) repurchase obligations of any Bank or of any
commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 30 days with respect to
securities issued or fully guaranteed or insured by the United States
Government, (d) commercial paper of a domestic issuer rated at least A-2 by
Standard and Poor's Rating Group ("S&P") or P-2 by ▇▇▇▇▇'▇ Investors
Service, Inc. ("Moody's"), (e) securities with maturities of one year or
less from the date of acquisition thereof issued or fully guaranteed by any
state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least A by S&P or A by
Moody's, (f) securities with maturities of one year or less from the date
of acquisition thereof backed by standby letters of credit issued by any
Bank or any commercial bank satisfying the requirements of clause (b) of
this definition or (g) shares of money market mutual or similar funds which
invest exclusively in assets satisfying the requirements of clauses (a)
through (f) of this definition.
"Change in Control" means:
(i) any "person" or "group" (as such terms are used in Sections
13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934, as amended),
other than (a) the HFCP Investors and their "affiliates" (as such term is
defined in Rule 12b-2 under the Securities Exchange Act of 1934, as
amended) or (b) the Management Voting Trust or the Management Investors
becomes the "beneficial owner" (as defined in Rule 13d-3 of the Securities
Exchange Act of 1934, as amended), directly or indirectly, of Voting Shares
of the Company (or other securities convertible into such Voting Shares)
representing not less than 30% of the combined voting power of all Voting
Shares of the Company; or
(ii) individuals who as of the date hereof are directors of the
Company (together with any new director whose election by the board of
directors or whose nomination for election by the stockholders of the
Company was approved by a vote of at least a
Credit Agreement
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majority of the directors then in office who either were directors as of
the date hereof or whose election or nomination for election was previously
so approved) shall cease for any reason (other than solely as a result of
(a) death or disability or (b) voluntary retirement of any individual in
the ordinary course and not for reasons related to an actual or proposed
change in control of the Company) to constitute a majority of the board of
directors of the Company; or
(iii) any Person or two or more Persons acting in concert (excluding
(a) the HFCP Investors and their "affiliates" (as such term is defined in
Rule 12b-2 under the Securities Exchange Act of 1934, as amended)) or (b)
the Management Voting Trust or the Management Investors shall have acquired
the power to exercise, directly or indirectly, effective control for any
purpose over Voting Shares of the Company (or other securities convertible
into such securities) representing not less than 30% of the combined voting
power of all Voting Shares of the Company.
"Closing Date" means the date on which the Administrative Agent
notifies the Company that the conditions precedent set forth in Section
3.01 shall have been satisfied or waived.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" has the meaning specified in Section 2.01(a)(i).
"Commitment Termination Date" means May 8, 2003, provided, that if
such date is not a Business Day, then the Commitment Termination Date shall
be the immediately preceding Business Day.
"Commonly Controlled Entity" means an entity, whether or not
incorporated, which is under common control with the Company within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Company and which is treated as a single employer under Section 414 of the
Code.
"Consolidated" means, when used in connection with any term (which is
not otherwise defined herein), such term as it applies to the Company and
its Subsidiaries on a consolidated basis in accordance with GAAP, after
eliminating all intercompany items.
"Consolidated Debt" means, at any time, the aggregate outstanding
principal amount of all Debt of the Company and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP, provided, that
any portion of Consolidated Debt denominated in a currency other than
Dollars, and any cash balances or securities denominated in a currency
other than Dollars, shall be converted to Dollars in the manner set forth
in the definition of "Dollar Equivalent".
Credit Agreement
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"Consolidated EBITDA" means, for any period, the amount equal to
Consolidated Net Income for such period excluding non-operating gains or
losses, plus, in each case to the extent deducted in determining
Consolidated Net Income for such period, the sum for the Company and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP,
of the following: (a) Consolidated Interest Expense for such period, (b)
amortization or write-off of debt issuance costs in connection with the
termination of the Existing Credit Agreement, (c) Consolidated provision
for income taxes for such period, (d) Consolidated depreciation and
amortization expense for such period, (e) Consolidated non-cash
compensation expense attributable to the vesting, in connection with the
consummation of the public offering of the shares of common stock of the
Company referred to in Section 3.01(g), of 9,231,105 shares of restricted
common stock of the Company, (f) any amounts in respect of the minority
interest of any other Person in the Company and its Subsidiaries for such
period, (g) the amount of all dividends received during such period from
Persons which are partially-owned by the Company, but which are not
Wholly-Owned Subsidiaries of the Company and which are not Consolidated for
such period, (h) expenses incurred or reserves taken during such period
associated with (i) the sale of the New York Real Property, including the
relocation or consolidation of individuals and offices located i New York
City (whether or not occupying the New York Real Property) in connection
with, or in anticipation of, such sale, or (ii) the relocation or
consolidation of individuals and offices located in New York City,
currently occupying more than 300,000 square feet, including in each case
all expenses of renovating office space, and (i) equity losses from any
other Person which is partially-owned by the Company but which is not a
Wholly-Owned Subsidiary of the Company and which is not Consolidated for
such period, minus, in each case to the extent added in determining such
Consolidated Net Income for such period, (x) any amounts in respect of the
minority interest of any other Person in the Company and its Subsidiaries
for such period, (y) the amount of all dividends paid during such period by
Persons which are not Wholly-Owned Subsidiaries of the Company, but which
the Company reports on a consolidated basis in accordance with GAAP, and
(z) equity gains from any other Person which is partially-owned by the
Company but which is not a Wholly-Owned Subsidiary of the Company and which
is not Consolidated for such period.
"Consolidated Interest Expense" means, for any period, for the Company
and its Consolidated Subsidiaries, the sum, determined on a consolidated
basis in accordance with GAAP and without duplication, of the aggregate
amount of interest accruing during such period by the Company and its
Consolidated Subsidiaries, including the interest portion of payments under
Capital Lease Obligations and any capitalized interest and amortization of
debt discount and expense, but excluding interest paid in kind and
amortization or write-off of debt issuance costs in connection with the
termination of the Existing Credit Agreement, provided that (a)
Consolidated Interest Expense for the period of four consecutive fiscal
quarters ending June 30, 1998 shall be equal to the product of Consolidated
Credit Agreement
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Interest Expense for the fiscal quarter ending June 30, 1998 multiplied by
four, (b) Consolidated Interest Expense for the period of four consecutive
fiscal quarters ending September 30, 1998 shall be equa to the product of
Consolidated Interest Expense for the two consecutive fiscal quarters
ending September 30, 1998 multiplied by two, (c) Consolidated Interest
Expense for the period of four consecutive fiscal quarters ending December
31, 1998 shall be equal to the product of Consolidated Interest Expense for
the three consecutive fiscal quarters ending December 31, 1998 multiplied
by a fraction, the numerator of which is four and the denominator of which
is three.
"Consolidated Net Income" means, for any period, the net income of the
Company and its Consolidated Subsidiaries determined on a consolidated
basis in accordance with GAAP for such period.
"Consolidated Subsidiary" means, at any date, any Subsidiary of the
Company the accounts of which are consolidated with those of the Company in
its consolidated financial statements prepared in accordance with GAAP.
"Continue", "Continuation" and "Continued" each refers to a
continuation of Advances of one Type as Advances of the same Type pursuant
to Section 2.09(b).
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.09(a), (c) or (d).
"CSI" means Citicorp Securities, Inc.
"Currency" means Dollars or any Foreign Currency.
"Debt" of any Person means, without duplication, (a) indebtedness of
such Person for borrowed money, (b) obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments (other than any
subordinated payment obligations existing on the Closing Date in respect of
the repurchase, retirement or redemption of capital stock of the Company
from former Management Investors), (c) obligations of such Person to pay
the deferred purchase price of Property or services, (d Capital Lease
Obligations of such Person, (e) Debt of others Guaranteed by such Person,
(f) Debt of others secured by a Lien on the Property of such Person, (g)
all obligations of such Person to redeem, retire, defease or otherwise make
any payment in respect of shares of capital stock of such Person (other
than any subordinated payment obligations existing on the Closing Date in
respect of the repurchase, retirement or redemption of capital stock of the
Company from former Management Investors), and (h) all obligations,
contingent or otherwise, of such Person in respect of letters of credit or
acceptances (excluding, however, trade accounts payable arising in the
ordinary course of business and deferred
Credit Agreement
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rent and deferred employee compensation incurred in the ordinary course of
business, and, in each case, not overdue).
"Debt to EBITDA Ratio" means, on any date, the ratio of (i)
Consolidated Debt on such date to (ii) Consolidated EBITDA for the period
of four consecutive fiscal quarters of the Company ending on or most
recently ended prior to such date.
"Default" means an Event of Default or an event that, with notice or
lapse of time or both, would become an Event of Default.
"Divestiture" shall mean any transaction, or any series of related
transactions, consummated after the date of this Agreement, by which the
Company and/or any of its Subsidiaries sells, transfers or otherwise
disposes of (a) any going business or all or substantially all of the
Property of any of its Subsidiaries, whether through the purchase of
assets, merger or otherwise or (b) at least a majority of Voting Shares of
any of its Subsidiaries.
"Dollar Equivalent" means, with respect to any Advance denominated in
any Foreign Currency, the amount of Dollars that would be required to
purchase the amount of the Foreign Currency of such Advance on the date
such Advance is requested (or (a) in the case of any determination made
under Section 2.01(a)(iii) hereof, on the date of any Borrowing referred to
therein, and (b) in the case of any determination made under Section
2.10(c) or redenomination under the last sentence of Section 2.13(e), on
the date of determination or redenomination therein referred to), based
upon the spot selling rate at which Citibank offers to sell such Foreign
Currency for Dollars in the London foreign exchange market at approximately
11:00 a.m. London time for delivery two Business Days later.
"Dollars" and "$" means lawful money of the United States of America.
"Domestic Lending Office" means, with respect to any Bank, the office
of such Bank (or of an Affiliate of such Bank) specified as its "Domestic
Lending Office" below its signature hereto or in the Assignment and
Acceptance pursuant to which it became a Bank, or such other office of such
Bank (or of an Affiliate of such Bank) as such Bank may from time to time
specify to the Borrower and the Administrative Agent.
"Domestic Operating Subsidiary" means any Operating Subsidiary
organized under the laws of any jurisdiction within the United States.
"Environmental Laws" means any and all present and future United
States Federal, state, local and foreign laws, rules or regulations, and
any orders or decrees, in each case as now or hereafter in effect, relating
to the regulation or protection of human health, safety or the environment
or to emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals or toxic or hazardous substances or
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wastes into the indoor or outdoor environment, including, without
limitation, ambient air, soil, surface water, ground water, wetlands, land
or subsurface strata, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or toxic or hazardous substances or
wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Credit Agreement" means the Credit and Guarantee Agreement,
dated as of December 12, 1996, among Young & Rubicam Holdings Inc., the
Company, Young & Rubicam Inc., a New York corporation, Young & Rubicam
L.P., the Subsidiary Borrowers party thereto, the Lenders party thereto,
Bank of America National Trust and Savings Association, as Administrative
Agent, and Bank of America International Limited, as European Paying Agent.
"Facility Fee" has the meaning specified in Section 2.03(a).
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"Foreign Borrower" means each Borrower that is a Foreign Operating
Subsidiary.
"Foreign Currency" means, at any time, any currency other than
Dollars.
"Foreign Currency Equivalent" means, with respect to any amount in
Dollars, the amount of any Foreign Currency that could be purchased with
such amount of Dollars using the reciprocal of the foreign exchange rate(s)
specified in the definition of the term "Dollar Equivalent", as determined
by the Administrative Agent.
"Foreign Operating Subsidiary" means any Operating Subsidiary of the
Company organized under the laws of any jurisdiction outside the United
States of America.
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"GAAP" has the meaning specified in Section 1.03.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of
another Person, including without limitation, any obligation of such Person
(a) to purchase or pay (or supply or advance funds for the purchase or
payment of) such Debt (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise), or (b) entered into for the purpose of assuring
in any other manner the holder of such Debt of the payment thereof in whole
or in part; provided, that the term "Guarantee" shall not include any
endorsement of an instrument for deposit or collection in the ordinary
course of business. The term "Guarantee" used as verb has a corresponding
meaning.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement
or other interest or currency exchange rate or commodity price hedging
arrangement.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person in respect of Hedging Agreements. The "principal
amount" of the obligations of any Person in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect
to any netting arrangements) that such Person would be required to pay if
such Hedging Agreement were terminated at such time.
"HFCP Investors" means, collectively, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Capital
Partners III, L.P., a California limited partnership, H&F Orchard Partners
III, L.P. , a California limited partnership, and H&F International
Partners III, L.P. , a California limited partnership.
"Hostile Acquisition" means an Acquisition that has not been approved
by the board of directors of the target company prior to the commencement
of a tender offer or proxy contest in respect thereof.
"Inactive Subsidiary" means any Subsidiary of the Company which (and
only for so long as such Subsidiary) (a) is not a Borrower, (b) is not then
actually engaged in any business, (c) does not have liabilities or
obligations, and is not a party to any litigation or other proceeding
involving amounts, in excess of $1,000,000 in the aggregate, (d) does not
own Property with an aggregate book value in excess of $1,000,000, (e) does
not own any capital stock of any Person (other than another Inactive
Subsidiary) and (f) does not
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incur any liabilities or obligations other than in connection with its
continued inactive existence or the liquidation or dissolution thereof.
"Insolvent" means, with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA. "Insolvency" has a correlative meaning.
"Interest Coverage Ratio" means, on any date, the ratio of (a)
Consolidated EBITDA for the period of four consecutive fiscal quarters most
recently ended on or prior to such date to (b) Consolidated Interest
Expense for such period.
"Interest Period" means, with respect to any LIBO Rate Advance, the
period beginning on the date such LIBO Rate Advance is made, or Converted
from a Base Rate Advance or Continued as a LIBO Rate Advance, and ending on
the last day of the period selected by the Company pursuant to the
provisions below. The duration of each Interest Period in respect of any
LIBO Rate Advance shall be 1, 2, 3 or 6 months, as the Company may, upon
notice received by the Administrative Agent not later than 12:00 noon (New
York City time) on the third Business Day prior to the first day of such
Interest Period, select; provided, however, that:
(a) the Company may not select any Interest Period in respect of
any LIBO Rate Advance that ends after the Commitment Termination Date;
(b) each Interest Period that begins on the last Business Day of
a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall
end on the last Business Day of the appropriate subsequent calendar
month; and
(c) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day, provided, that, if such extension would cause the last
day of such Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur on the next
preceding Business Day.
"Investment" has the meaning specified in Section 5.02(d).
"Joint Venture" means any corporation, partnership, association,
business trust or other entity or organization which is not a Subsidiary of
a Borrower and in which the Company or a Subsidiary has a significant
ownership interest.
"LIBO Lending Office" means, with respect to any Bank, the office of
such Bank (or of an Affiliate of such Bank) specified as its "LIBO Lending
Office" below its signature hereto or in the Assignment and Acceptance
pursuant to which it became a Bank (or, if no such office is specified, its
Domestic Lending Office), or such other office
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of such Bank (or of an Affiliate of such Bank) as such Bank may from time
to time specify to the Borrower and the Administrative Agent.
"LIBO Rate" means, with respect to each day during the relevant
Interest Period, the rate per annum equal to the average (rounded upward to
the nearest whole multiple of 1/16 of 1% per annum, if such average is not
such a multiple) of the rates per annum at which deposits in Dollars or the
relevant Approved Foreign Currency are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the London
(or, in the case of English Pounds Sterling, Paris) interbank market at
11:00 A.M. (London time) two Business Days before the first day of such
Interest Period for a period comparable to such Interest Period and in an
amount approximately equal to such Reference Banks' collective pro rata
share of the requested Advance. The LIBO Rate for any Interest Period for
each LIBO Rate Advance comprising part of each Borrowing shall be
determined by the Administrative Agent on the basis of applicable rates
furnished to and received by the Administrative Agent from the Reference
Banks two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.08.
"LIBO Rate Advance" means an Advance which bears interest as provided
in Section 2.06(a)(ii) or 2.06(b)(i)(y).
"LIBO Rate Reserve Percentage" of any Bank for any Interest Period for
any LIBO Rate Advance means the effective rate (expressed as a percentage)
at which reserve requirements (including, without limitation, emergency,
supplemental and other marginal reserve requirements) are imposed on such
Bank during such Interest Period (or if more than one such percentage shall
be so applicable, the daily average of such percentages for those days in
such Interest Period during which any such percentage shall be so
applicable) under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind on or with respect to Property, including, without
limitation, the retained security title of a conditional vendor, any
easement, right of way or other encumbrance on title to real Property and
any sale of accounts or general intangibles for money due or to become due.
"Local Time" shall mean, with respect to any Advance denominated in or
any payment to be made in any Currency, the local time in the Principal
Financial Center for the Currency in which such Advance is denominated or
such payment is to be made.
"Majority Banks" means at any time Banks holding more than 50% of the
Commitments or, if the Commitments have expired or been terminated, Banks
holding
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more than 50% of the then aggregate unpaid principal amount of the Advances
held by Banks (for which purpose Advances held by any Affiliate of a Bank
shall be deemed to be held by such Bank).
"Management Investor" means any holder of Voting Shares or of a right
to acquire Voting Shares who is a current or former employee of the
Company.
"Management Voting Trust" means the voting trust established pursuant
to the Management Voting Trust Agreement, dated as of December 12, 1996.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise) or prospects of the Company
and its Subsidiaries, taken as a whole, or (b) the legality, validity or
enforceability of this Agreement or any Note, or (c) the ability of any
Borrower to perform its obligations under this Agreement or any Note.
"Material Foreign Operating Subsidiary" means any Foreign Operating
Subsidiary of the Company (a) which has liabilities or obligations, or is a
party to any litigation or other proceeding involving amounts, in excess of
$5,000,000 in the aggregate, provided that no Foreign Operating Subsidiary
shall be a Material Foreign Operating Subsidiary under this clause (a)
unless a Borrower or any Domestic Operating Subsidiary or other Material
Foreign Operating Subsidiary is or may be liable for such liabilities,
obligations, litigations or proceedings, or (b) which owns assets (net of
current liabilities (other than those owed to the Company or any of its
Subsidiaries) immediately prior to the occurrence of the relevant event
described in Section 6.01(g) with respect to such Foreign Operating
Subsidiary) with an aggregate book value in excess of $5,000,000.
"Material Lease" means any lease, sublease, license or other occupancy
agreement (a) which involves an obligation with respect to 50,000 or more
square feet in area of real Property and (b) to which any Borrower or any
of its Subsidiaries is a party or pursuant to which such Borrower or any
such Subsidiary uses or occupies real Property.
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Multiemployer Plan" means a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Amount" means, with respect to any Investment, the cost to the
Company and its Subsidiaries of such Investment (determined in accordance
with GAAP, but without regard to any increase or decrease in the value of
such Investment, whether
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resulting from profits and losses or from changes in currency exchange
rates or otherwise, or the existence of any undistributed profits or losses
with respect thereto), less any net return of capital realized upon the
sale, repayment or other liquidation of such Investment (determined in
accordance with GAAP, but without regard to any amounts realized as
earnings on such Investment).
"New York Real Property" means the real Property owned by the Company
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇.
"Note" means a promissory note of any Borrower payable to the order of
any Bank, in substantially the form of Exhibit A hereto, evidencing the
aggregate indebtedness of such Borrower to such Bank resulting from the
Revolving Credit Advances made by such Bank.
"Notice of Borrowing" means a Notice of Revolving Credit Borrowing or
a Notice of Swing Line Borrowing.
"Notice of Revolving Credit Borrowing" has the meaning specified in
Section 2.01(d)(i).
"Notice of Swing Line Borrowing" has the meaning specified in Section
2.02(d).
"Operating Subsidiary" means any Subsidiary other than an Inactive
Subsidiary.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a Government
Authority.
"Plan" means, at any time, any employee benefit plan which is covered
by ERISA and in respect of which the Company or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Pricing Level Change" means a change in the Debt to EBITDA Ratio that
results in the change from one Pricing Level Period to another, each
Pricing Level Change to be effective on the date of delivery by the
Borrower pursuant to Section 5.01(a)(i) and (ii) of the financial
statements that demonstrate such change; provided, that if the Borrowers
shall fail to deliver when due such financial statements, the Pricing Level
3 Period shall be deemed to apply from the date on which such financial
statements were due until they are delivered in accordance with said
Section 5.01(a)(i) or (ii).
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"Pricing Level Period" means a Pricing Level 1 Period, a Pricing Level
2 Period or a Pricing ▇▇▇▇▇ ▇ Period.
"Pricing Level 1 Period" means a period during which the Debt to
EBITDA Ratio is less than 1.0 to 1.0.
"Pricing Level 2 Period" means a period that is not a Pricing Level 1
Period during which the Debt to EBITDA Ratio is less than 2.5 to 1.0.
"Pricing Level 3 Period" means a period during which the Debt to
EBITDA Ratio is greater than or equal to 2.5 to 1.0.
"Principal Financial Center" shall mean, in the case of any Currency,
the principal financial center of the country of issue of such Currency, as
determined by the Administrative Agent.
"Property" means, with respect to any Person, any property, assets or
revenues of such Person or any interest of such Person therein.
"Quarterly Date" means the last Business Day of each March, June,
September and December.
"Reference Banks" means the principal London office of each of
Citibank, Bank of America National Trust and Savings Association and The
Bank of New York.
"Register" has the meaning specified in Section 8.07(d).
"Related Equity Securities" means, all options, warrants or other
rights to acquire, or obligations to issue, shares of capital stock of,
equity interests in, or partnership interests in, the Company or any of its
Subsidiaries, or similar securities or contractual obligations the value of
which is derived from the value of an equity interest in the Company or any
of its Subsidiaries, or securities convertible into or exchangeable for
capital stock of, equity interests in, partnership interests in, or similar
securities or contractual obligations of, the Company or any of its
Subsidiaries.
"Reportable Event" means any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty-day notice
period is waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC
Reg. ss. 2615.
"Reorganization" means, with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other
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Governmental Authority, in each case applicable to or binding upon such
Person or any of its Property or to which such Person or any of its
Property is subject.
"Responsible Officer" means, as to any Person, the chief executive
officer, the president, any member of the management committee of such
Person or any other officer of such Person designated as such in writing by
any of the foregoing officers of such Person or, with respect to financial
matters, the chief financial officer, the chief accounting officer or the
treasurer of such Person.
"Revolving Credit Advance" means an advance by a Bank to a Borrower as
part of a Revolving Credit Borrowing.
"Revolving Credit Borrowing" means (a) a borrowing consisting of
simultaneous Revolving Credit Advances of the same Currency and Type having
the same Interest Period and (b) other than for purposes of Section 3.02,
(i) the simultaneous Conversion of Revolving Credit Advances of one Type to
Revolving Credit Advances of the other Type in the same Currency (having,
in the case of Conversions into LIBO Rate Advances, the same Interest
Period) and (ii) the simultaneous Continuation of Revolving Credit Advances
of one Type as Revolving Credit Advances of the same Type in the same
Currency and having the same Interest Period.
"Single Employer Plan" means any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Specified Eurocurrency" means any of English Pounds Sterling, German
Deutschemarks, French Francs, Swiss Francs or Japanese Yen.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company or other entity of which at least a
majority of the Voting Shares of such corporation, partnership, limited
liability company or other entity is at the time directly or indirectly
owned or controlled by such Person or one or more Subsidiaries of such
Person or by such Person and one or more Subsidiaries of such Person.
Unless the context otherwise indicates, a reference to a Subsidiary, shall
mean a Subsidiary of the Company.
"Swing Line Advance" means an advance made by (a) the Swing Line Bank
pursuant to Section 2.02 or (b) any other Bank pursuant to Section 2.02(g).
"Swing Line Bank" means Citibank.
"Swing Line Borrowing" means a borrowing consisting of a Swing Line
Advance made by the Swing Line Bank.
"Swing Line Facility" means an aggregate amount not to exceed
$20,000,000 at any time outstanding.
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"Swing Line Reduction" has the meaning specified in Section
2.01(a)(i).
"Termination Date" means the earlier of the Commitment Termination
Date and the date of termination in whole of the Commitments pursuant to
Section 2.04(b) or 6.01.
"Voting Shares" means, at any time, as to any Person, the outstanding
securities of such Person the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person.
"Wholly-Owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person 100% of the Voting Shares (except qualifying
shares held by directors or others in order to comply with local law) of
which are owned by such Person and/or one or more other Wholly-Owned
Subsidiaries of such Person.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted United
States accounting principles ("GAAP"), applied on a basis consistent (except for
changes concurred in by the Borrower's independent public accountants) with the
most recent audited consolidated financial statements of the Company and its
Consolidated Subsidiaries delivered to the Banks; provided, that if, after the
date of this Agreement there are any changes to GAAP, the Company or the
Required Banks may request an amendment to any provision of this Agreement to
take account of such changes, and, until such provision is so amended or such
request withdrawn, all determinations of such provision shall be made on the
basis of GAAP applied on a basis consistent with the audited financial
statements of the Company and its Consolidated Subsidiaries most recently
delivered prior to the time such changes to GAAP became effective.
SECTION 1.04. Currencies and Types of Advances. Advances are distinguished
by "Currency" and by "Type". The "Currency" of an Advance refers to the Currency
in which it is at the time denominated. The "Type" of an Advance refers to
whether it is at the time a Base Rate Advance or a LIBO Rate Advance.
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances.
(a)(i) Each Bank severally agrees, on the terms and conditions
hereinafter set forth, to make Revolving Credit Advances to any Borrower in
Dollars or (in the case of LIBO Rate Advances only) in an Approved Foreign
Currency from time to time on any Business Day during the period from the
date hereof until the Termination Date in an aggregate amount not to exceed
at any time outstanding the amount set opposite such Bank's name on the
signature pages hereof or, if such Bank has entered int any Assignment and
Acceptance, set forth for such Bank in the Register, as such amount may be
increased or reduced pursuant to Section 2.04 (such Bank's "Commitment");
provided that the aggregate amount of the Commitments of the Banks shall be
deemed used from time to time to the extent of the aggregate amount of
Swing Line Advances then outstanding, such deemed use of the aggregate
amount of the Commitments to be deemed applied to the Banks ratably
according to their respective Commitments (such deemed use of the aggregate
amount of the Commitments being a "Swing Line Reduction").
(ii) Subject to the terms and conditions of this Agreement, each
Foreign Borrower agrees that the Commitment of each Bank that has an
Affiliate in the country or countries (including any political subdivision
or taxing authority thereof or therein) under whose laws such Foreign
Borrower is organized or where such Borrower is domiciled, resident or
licensed or otherwise qualified to do business or where any significant
part of the Property of such Foreign Borrower is located may be satisfied
to the extent of Revolving Credit Advances made to such Foreign Borrower by
such Affiliate at its sole discretion; provided that the outstanding
principal amount of such Revolving Credit Advances made by an Affiliate of
any Bank shall constitute a utilization of the Commitment of such Bank for
all purposes of this Agreement.
(iii) If after giving effect to any LIBO Rate Advances under this
Section 2.01(a) more than six separate Interest Periods in respect of LIBO
Rate Advances denominated in a single Currency, or more than twelve
separate Interest Periods in respect of all LIBO Rate Advances, would be
outstanding at the same time, then such Advances shall not be required to
be made as LIBO Rate Advances.
(iv) For purposes of determining (i) whether the amount of any
Borrowing, together with all other Advances then outstanding, would exceed
the aggregate amount of the Commitments, (ii) for purposes of Section
2.04(b), the aggregate unutilized amount of the Commitments and (iii) for
purposes of Sections 2.09, 2.10(b) and 2.10(c), the aggregate outstanding
principal amount of the Advances, the outstanding principal
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amount of any Advance that is denominated in a Foreign Currency shall
be deemed to be the Dollar Equivalent of the Foreign Currency amount
of such Advance.
(b) Each Revolving Credit Borrowing (i) shall (except as otherwise provided
in Sections 2.09(c) and (d)) be in an aggregate amount not less than (x) in the
case of a Revolving Credit Borrowing comprised of Advances denominated in
Dollars, $10,000,000 or an integral multiple of $1,000,000 in excess thereof and
(y) in the case of a Revolving Credit Borrowing comprised of Advances
denominated in any Approved Foreign Currency, the Foreign Currency Equivalent of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof (rounded
downwards to the nearest 1,000 units of such Approved Foreign Currency) and (ii)
shall consist of Revolving Credit Advances of the same Type (and, if such
Revolving Credit Advances are LIBO Rate Advances, having the same Interest
Period), denominated in the same Currency and made, Converted or Continued on
the same day by the Banks ratably according to their respective Commitments.
Subject to the terms and conditions of this Agreement, the Borrowers may from
time to time borrow under this Section 2.01, prepay pursuant to Section 2.10(b)
and reborrow the amount of the Commitments; provided, that no such reborrowing
shall be permitted hereunder at any time if, after giving effect thereto, the
aggregate outstanding principal amount of Advances would exceed the aggregate
amount of the Commitments at such time (for which purpose the Advances made by
an Affiliate of any Bank pursuant to Section 2.01(a)(ii) shall be deemed to be
Advances made by such Bank).
(c) The Revolving Credit Advances of each Bank made to any Borrower under
this Section 2.01 shall be evidenced by a single promissory note of such
Borrower in the amount of such Bank's Commitment in substantially the form of
Exhibit A.
(d) (i) The Company shall give the Administrative Agent notice of each
Revolving Credit Borrowing not later (x) than 12:00 noon (New York City
time) on the third Business Day (or, if such Revolving Credit Borrowing is
to be denominated in an Alternate Currency, 12:00 noon (London time) on the
third Business Day) prior to the date of such Revolving Credit Borrowing in
the case of a Revolving Credit Borrowing consisting of LIBO Rate Advances,
or (y) than 11:00 A.M. (New York City time) o the Business Day of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Base Rate Advances, and the Administrative Agent
shall give to each Bank prompt notice thereof by telecopier, telex or
cable. Each such notice of a Revolving Credit Borrowing (a "Notice of
Revolving Credit Borrowing") shall be by telecopier, telex or cable, in
substantially the form of Exhibit B-1, specifying therein (i) the requested
date of such Revolving Credit Borrowing, (ii) the requested Currency and
Type of Revolving Credit Advances comprising such Revolving Credit
Borrowing, (iii) the requested aggregate amount of such Revolving Credit
Borrowing, (iv) in the case of a Revolving Credit Borrowing consisting of
LIBO Rate Advances, the requested initial Interest Period for each such
Advance, and (v) the name of the applicable Borrower.
(ii) Each Bank shall, before 1:00 P.M. Local Time on the date of such
Revolving Credit Borrowing, make available for the account of its
Applicable Lending Office to the
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Administrative Agent at the Administrative Agent's Account for the Currency
of such Revolving Credit Advances, in same day funds, such Bank's ratable
portion of such Revolving Credit Borrowing. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Administrative Agent will make
such funds available to the applicable Borrower at such account as such
Borrower and the Administrative Agent may agree.
(e) Each Notice of Revolving Credit Borrowing shall be irrevocable and
binding on the Company and the applicable Borrower. In the case of any Revolving
Credit Borrowing which the related Notice of Revolving Credit Borrowing
specifies is to be comprised of LIBO Rate Advances, the Company shall indemnify
each Bank against any loss, cost or expense incurred by such Bank as a result of
any failure to fulfill, on or before the date specified in such Notice of
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 Bank to fund the Revolving Credit
Advance to be made by such Bank as part of such Revolving Credit Borrowing. The
Company shall not be liable under this clause for the payment of any amounts
incurred or accrued more than 180 days prior to the date on which notice of the
event or circumstance giving rise to the obligation to make such payment is
given to the Company hereunder, except to the extent such amounts were incurred
or accrued prior to such date due solely to the retroactive nature of the
relevant requirement. The Company shall pay amounts owing to any Bank pursuant
to this Section 2.01(e) within 30 days after receipt from such Bank of a
certificate setting forth in reasonable detail the calculation of the amount
such Bank is entitled to claim under this Section 2.01(e) (which certificate
shall be conclusive and binding on the Company, absent manifest error). If the
Company objects in good faith to any payment demanded under this clause on or
before the date such payment is due, then the Company and the Bank demanding
such payment shall enter into discussions to review the amount due, and the
Company's obligation to pay such amount to such Bank shall be deferred for 45
days after the original demand for payment, and if the Company and such Bank do
not reach agreement during such 45-day period on the amount due, the Company
shall pay to such Bank at the end of such 45-day period the amount certified by
such Bank to be due.
(f) Unless the Administrative Agent shall have received notice from a Bank
prior to the date of any Revolving Credit Borrowing that such Bank will not make
available to the Administrative Agent such Bank's ratable portion of such
Revolving Credit Borrowing, the Administrative Agent may assume that such Bank
has made such portion available to the Administrative Agent on the date of such
Revolving Credit Borrowing in accordance with Section 2.01(d) and the
Administrative Agent may, in reliance upon such assumption, make available to
the applicable Borrower on such date a corresponding amount. If and to the
extent that such Bank shall not have so made such ratable portion available to
the Administrative Agent, such Bank and such Borrower severally agree to repay
to the Administrative 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
Administrative Agent, at (i) in the case of such Borrower, the interest rate
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applicable at the time to the Revolving Credit Advances and (ii) in the case of
such Bank, the Federal Funds Rate. If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Advance as part of such Revolving Credit Borrowing for
purposes of this Agreement (and such Advance shall be deemed to have been made
by such Bank on the date on which such amount is so repaid to the Administrative
Agent).
(g) The failure of any Bank to make the Revolving Credit Advance to be made
by it as part of any Revolving Credit Borrowing shall not relieve any other Bank
of its obligation, if any, hereunder to make its Revolving Credit Advance on the
date of such Revolving Credit Borrowing, but no Bank shall be responsible for
the failure of any other Bank to make the Revolving Credit Advance to be made by
such other Bank on the date of any Revolving Credit Borrowing.
(h) The Revolving Credit Advances of each Currency and Type made by each
Bank shall be made and maintained at such Bank's Applicable Lending Office for
Revolving Credit Advances of such Currency and Type.
SECTION 2.02. Swing Line Advances.
(a) The Company may request the Swing Line Bank to make, and the Swing Line
Bank may from time to time, in its sole discretion, make, on the terms and
conditions herein set forth, Swing Line Advances to the Company in Dollars on
any Business Day during the period from the date hereof until the earlier of (i)
the Termination Date and (ii) 30 days before the Commitment Termination Date in
an aggregate amount not to exceed at any time outstanding the lesser of (i) the
Swing Line Facility and (ii) the unused amount of the Commitments on such
Business Day.
(b) Each Swing Line Borrowing shall be in a principal amount not less than
$1,000,000.
(c) Subject to the terms and conditions of this Agreement, the Company may
borrow under this Section 2.02, prepay pursuant to Section 2.10(a) and reborrow
hereunder; provided, that no such reborrowing shall be permitted hereunder at
any time if, after giving effect thereto, (i) the aggregate outstanding
principal amount of Advances would exceed the aggregate amount of the
Commitments at such time or (ii) the aggregate outstanding principal amount of
Swing Line Advances would exceed the amount of the Swing Line Facility at such
time.
(d) The Company may request a Swing Line Borrowing from the Swing Line Bank
under this Section 2.02 by delivering to the Administrative Agent and the Swing
Line Bank, no later than 12:00 noon (New York City time) on the date of the
proposed Swing Line Borrowing, a notice of a Swing Line Borrowing (a "Notice of
Swing Line Borrowing"), which shall be made by telecopier, telex or cable, in
substantially the form of Exhibit B-2, specifying therein (i) the requested date
of such Swing Line Borrowing (which shall be a Business Day), (ii)
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the requested amount of such Swing Line Borrowing, (iii) the requested maturity
of such Swing Line Borrowing (which maturity shall be no later than the seventh
day after the requested date of such Swing Line Borrowing) and (iv) the account
of the Company to which the proceeds of such Swing Line Borrowing are to be made
available.
(e) The Swing Line Bank shall, no later than 2:00 P.M. (New York City time)
on the requested date of such Swing Line Borrowing notify the Administrative
Agent and the Company of its decision whether or not to make the requested Swing
Line Advance; provided that any failure by the Swing Line Bank to give such
notice shall not cause the Swing Line Bank to be obligated to make such Swing
Line Advance.
(f) If the Swing Line Bank, in its sole discretion, elects to make such
Swing Line Advance, it will (subject to the applicable conditions set forth in
Article III) make the amount of such Swing Line Advance available to the Company
at the account specified in the relevant Notice of Swing Line Borrowing.
(g) Upon demand by the Swing Line Bank through the Administrative Agent,
each other Bank shall purchase from the Swing Line Bank, and the Swing Line Bank
shall sell and assign to each other Bank, such other Bank's pro rata share
(based upon such Bank's respective amount of the Commitments at such time or, if
the Commitments have terminated, such Bank's respective amount of the Advances
at such time) of the amount of each outstanding Swing Line Advance (and related
claims for accrued and unpaid interest thereon in respect of the period from and
after the effective date of such assignment) made by the Swing Line Bank, by
making available for the account of its Applicable Lending Office to the
Administrative Agent for the account of the Swing Line Bank by deposit to the
Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Swing Line Advances to be
purchased by such Bank. Each Bank's obligations to make such payments t the
Administrative Agent for the account of the Swing Line Bank under this paragraph
(g), and the Swing Line Bank's right to receive the same, shall be absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, the failure of any other Bank to make its payment
under this paragraph (g), the financial condition of the Company or any other
Borrower, the existence of any Default, the failure of any of the conditions set
forth in Article III to be satisfied, or the termination of the Commitments.
Each such payment to the Swing Line Bank shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Bank agrees to purchase its
pro rata share of such outstanding Swing Line Advances on (i) the Business Day
on which demand therefor is made by the Swing Line 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. Upon any such assignment by the
Swing Line Bank to any other Bank of a portion of the Swing Line Advances, the
Swing Line Bank represents and warrants to such other Bank that the Swing Line
Bank is the legal and beneficial owner of such interest being assigned by it,
but makes no other representation or warranty and assumes no responsibility with
respect to such Swing Line Advance. If and to the extent that any Bank shall not
have so made the amount of such Swing Line Advance available
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to the Administrative Agent, such Bank agrees to pay to the Administrative Agent
for the account of the Swing Line Bank forthwith on demand such amount together
with interest thereon, for each day from the date of demand by the Swing Line
Bank until the date such amount is paid to the Administrative Agent, at the
Federal Funds Rate. If such Bank shall pay to the Administrative Agent such
amount for the account of the Swing Line Bank, such amount so paid in respect of
principal shall constitute a Swing Line Advance by such Bank for purposes of
this Agreement, and the outstanding principal amount of the Swing Line Advances
made by the Swing Line Bank shall be reduced by such amount.
SECTION 2.03. Fees.
(a) Facility Fee. The Company and each Borrower that is not a Foreign
Borrower jointly and severally agree to pay to the Administrative Agent for the
account of each Bank a facility fee (the "Facility Fee") on the daily average
amount (both used and unused) of such Bank's Commitment from the date (in the
case of each Bank that is a signatory hereto) on which the Borrowers sign this
Agreement and from the effective date specified in the Assignment and Acceptance
(in the case of each Ban that becomes a party hereto pursuant to Section 2.04(a)
or 8.07) pursuant to which it became a Bank, until the Termination Date, at a
rate per annum equal to the Applicable Facility Fee Rate as in effect from time
to time. Any accrued Facility Fees shall be paid on each Quarterly Date and on
the Termination Date.
(b) Administrative Agent's Fee. The Company agrees to pay to the
Administrative Agent, for the Administrative Agent's own account, an annual
administrative agency fee at the times and in the amounts heretofore agreed
between the Company and the Administrative Agent.
(c) Arrangement Fee. The Company agrees to pay (i) to CSI for CSI's own
account, an arrangement fee on the Closing Date in the amount heretofore agreed
between the Company and CSI and (ii) to BARS for BARS's own account, an
arrangement fee on the Closing Date in the amount heretofore agreed between the
Company and BARS.
(d) Upfront Fee. The Company agrees to pay to the Administrative Agent for
the account of each Bank an upfront fee on the Closing Date in the amount
heretofore agreed between the Company, the Administrative Agent and CSI.
SECTION 2.04. Changes in Commitments.
(a) Commitment Increases. The Company shall have the right, no more than
once in any calendar year, to increase the aggregate amount of the Commitments
hereunder on and subject to the following terms and conditions:
(i) The Company may, by notice to the Administrative Agent (which
shall promptly notify the Banks), request that the Banks increase ratably
their respective
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Commitments by an aggregate amount up to but not exceeding $100,000,000,
specifying the amount of the proposed increase and the proposed effective
date thereof.
(ii) The Company may offer the increase to (x) then existing Banks,
and each such existing Bank shall have the right (but no obligation) to
commit to all or a specified portion of the proposed increase, or (y) other
financial institutions (each an "Additional Bank") that are not Banks and
that are reasonably acceptable to the Administrative Agent; provided, that
the commitment of any such other financial institution shall be at least
$10,000,000.
(iii) Each Bank, acting in its sole discretion, shall, by notice to
the Company and the Administrative Agent given no later than the date (the
"Increase Consent Date") that is 15 days after the date of such increase
request (or, if such date is not a Business Day, the next succeeding
Business Day), advise the Company and the Administrative Agent whether or
not such Bank agrees to such increase; provided, that each Bank that
determines not to increase its Commitment (a "Non-Increasing Bank") shall
notify the Administrative Agent (which shall notify the Banks) of such fact
promptly after such determination (but in any event no later than the
Increase Consent Date) and any Bank that does not advise the Company on or
before the Increase Consent Date shall be deemed to be a Non-Increasing
Bank. The election of any Bank to agree to such increase shall not obligate
any other Bank to so agree.
(iv) The Administrative Agent shall notify each Bank of such increase,
confirming the effective date thereof (the "Increased Commitment Date") and
the aggregate amount thereof and the amount of the increase (if any) in
each Bank's Commitment; and on such effective date, each Bank's Commitment
shall automatically, without any other action by any Person, be increased
by the additional amount agreed to by such Bank; provided that, in the
event that the amount by which the Banks have agreed to increase their
Commitments exceeds the amount of the requested increase of the Commitments
offered to the Banks, such increase in the Commitments shall be allocated
among such Banks pro rata in accordance with the respective amounts of by
which such Banks have agreed to increase their Commitments.
(v) Each Additional Bank shall, prior to the Increased Commitment
Date, execute and deliver an agreement in form and substance satisfactory
to the Borrower and the Administrative Agent pursuant to which it
undertakes a Commitment hereunder (and such Additional Bank shall thereupon
become a "Bank" for all purposes of this Agreement).
(vi) On the Increased Commitment Date, each Borrower that has borrowed
Revolving Credit Advances that remain outstanding on the Increased
Commitment Date shall borrow from, and each Bank that is increasing its
Commitment on the Increased Commitment Date and each Additional Bank shall
make Revolving Credit Advances to, such Borrower, and (notwithstanding the
provisions of Section 2.15 requiring that
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prepayments be made ratably in accordance with the principal amounts of the
Revolving Credit Advances held by the Banks) such Borrower shall have
prepaid Revolving Credit Advances made by the other Banks in such amounts
as shall be necessary, so that after giving effect to such borrowings and
prepayments, the Revolving Credit Advances shall be held by the Banks pro
rata in accordance with the respective amounts of their Commitments (as
increased hereby).
(vii) Notwithstanding the foregoing, any increase in the aggregate
Commitments hereunder pursuant to this Section 2.04(a) shall notbe
effective unless.
(x) the Company shall have given the Administrative Agent notice
of any such increase at least 20 Business Days prior to any such
Increased Commitment Date;
(y) no Default shall have occurred and be continuing as of the
date of the notice referred to in the foregoing clause (x) or on the
Increased Commitment Date; and
(z) the aggregate amount of increase in the aggregate Commitments
pursuant to this Section 2.04(a) may not exceed $100,000,000, and the
amount of any single increase in the aggregate Commitments pursuant to
this Section 2.04(a) shall be at least $25,000,000.
(b) Commitment Reductions. (i) The aggregate amount of the Commitments
shall automatically be reduced to zero on the Commitment Termination Date.
(ii) The Company shall have the right, upon at least three Business
Days' notice to the Administrative Agent, to terminate in whole or reduce
ratably in part the unutilized portions of the respective Commitments of
the Banks, provided, that the aggregate amount of the Commitments of the
Banks shall not be reduced to an amount which is less than the aggregate
principal amount of the Advances then outstanding (computed, in the case of
Advances denominated in a Foreign Currency, as the Dollar Equivalent
thereof), and provided, further, that each partial reduction shall be in an
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in
excess thereof.
(c) Reductions Permanent. The Commitments once terminated or reduced
under this Section 2.04 may not be reinstated.
SECTION 2.05. Repayment of Advances.
(a) Advances. Each Borrower hereby promises to repay to the Administrative
Agent for the account of each Bank the principal amount of each Revolving Credit
Advance made by such Bank to such Borrower, and each Revolving Credit Advance
shall mature, on the Termination Date.
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(b) Swing Line Advances. The Company hereby promises to pay to the Swing
Line Bank (with notice to the Administrative Agent), and to the Administrative
Agent for the account of each other Bank that has made a Swing Line Advance, the
outstanding principal amount of each Swing Line Advance made by each of them,
and each such Swing Line Advance shall mature, on the earlier of the maturity
date specified in the applicable Notice of Swing Line Borrowing (which maturity
shall be no later than the seventh day after the requested date of such Swing
Line Borrowing) and the Termination Date.
SECTION 2.06. Interest.
(a) Ordinary Interest. Each Borrower shall pay interest on the unpaid
principal amount of each Advance made by each Bank to such Borrower, from the
date of such Advance until such principal amount shall be paid in full, at the
following rates per annum:
(i) Base Rate Advances. If such Advance is a Base Rate Advance, a rate
per annum equal to the sum of the Base Rate in effect from time to time
plus the Applicable Margin for Base Rate Advances as in effect from time to
time, payable quarterly in arrears on each Quarterly Date and on the date
such Base Rate Advance shall be Converted or paid in full.
(ii) LIBO Rate Advances. If such Advance is a LIBO Rate Advance, a
rate per annum for the Interest Period for such Advance, equal to the sum
of the LIBO Rate for such Interest Period plus the Applicable Margin for
LIBO Rate Advances as in effect from time to time, payable on the last day
of such Interest Period and, if such Interest Period has a duration of more
than three months, on the three-month anniversary of the first day of such
Interest Period, and on the date such LIBO Rate Advance shall be Converted
or paid in full.
(iii) Swing Line Advances. If such Advance is a Swing Line Advance, a
rate per annum equal to the sum of the Base Rate in effect from time to
time (or such other rate as may be agreed to in writing by the Company and
the Swing Line Bank prior to the making of such Swing Line Advance) plus
the Applicable Margin for Base Rate Advances in effect from time to time,
payable quarterly in arrears on each Quarterly Date, on the scheduled
maturity date of such Swing Line Advance and on the date such Swing Line
Advance shall be paid in full.
(b) Default Interest. Each Borrower shall pay interest on the unpaid
principal amount of each Advance made to such Borrower that is not paid when due
(whether at stated maturity, by acceleration or otherwise), and on the unpaid
amount of any interest, fee or other amount whatsoever payable hereunder that is
not paid when due, payable on demand, at a rate per annum during the period from
the due date thereof to the date on which such amount is paid in full equal to:
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(i) in the case of any amount of principal of such Advance:
(x) in the case of any Base Rate Advance or any Swing Line
Advance, 2% per annum plus the rate which would otherwise be
applicable to such Advance, and
(y) in the case of any LIBO Rate Advance, for the balance of the
then current Interest Period, 2% per annum plus the rate which would
otherwise be applicable to such Advance for such Interest Period and,
thereafter, 2% per annum plus the Base Rate as in effect from time to
time, and
(ii) in the case of all other amounts, 2% per annum plus the Base Rate
as in effect from time to time.
SECTION 2.07. Additional Interest on LIBO Rate Advances. Each Borrower
shall pay to each Bank, so long as such Bank shall be required under regulations
of the Board of Governors of the Federal Reserve System to maintain reserves
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities (or the equivalent), additional interest on the unpaid principal
amount of each LIBO Rate Advance of such Bank made to such Borrower, from the
date of such LIBO Rate Advance until such principal amount is paid in full, at
an interest rate per annum equal at all times to the remainder obtained by
subtracting (a) the LIBO Rate for the then current Interest Period for such LIBO
Rate Advance from (b) the rate obtained by dividing such LIBO Rate by a
percentage equal to 100% minus the LIBO Rate Reserve Percentage of such Bank for
such Interest Period, payable on each date on which interest is payable on such
LIBO Rate Advance. Any Bank wishing to require payment of such additional
interest on any LIBO Rate Advance shall so notify the Borrower of such LIBO Rate
Advance and the Administrative Agent and shall furnish to such Borrower a
certificate (which certificate shall be conclusive and binding on such Borrower,
absent manifest error) setting forth the basis for such assertion and the amount
to which such Bank is then entitled under this Section.
SECTION 2.08. Interest Rate Determinations; Changes in Pricing Levels.
(a) Each Reference Bank agrees to furnish to the Administrative Agent, upon
request of the Administrative Agent, timely information for the purpose of
determining the LIBO Rate from time to time. If any one or more of the Reference
Banks shall not furnish such timely information to the Administrative Agent for
the purpose of determining the LIBO Rate, the Administrative Agent shall
determine the LIBO Rate on the basis of timely information furnished by the
remaining Reference Banks (subject to clause (c) below).
(b) The Administrative Agent shall give prompt notice to the Company and
the Banks of the applicable interest rate determined by the Administrative Agent
for the purpose of Section 2.06 and the applicable rate, if any, furnished by
each Reference Bank for the purpose of determining the applicable interest rate
under Section 2.06(a)(ii).
Credit Agreement
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(c) If fewer than two Reference Banks furnish timely information to the
Administrative Agent for determining the LIBO Rate for the Interest Period for
any LIBO Rate Advances,
(i) the Administrative Agent shall forthwith notify the Company and
the Banks that the interest rate cannot be determined for such LIBO Rate
Advances for such Interest Period,
(ii) each such Advance will instead be made as a Base Rate Advance,
and
(iii) the obligation of the Banks to make, or to Convert Advances
into, or to Continue Advances as, LIBO Rate Advances shall be suspended
until the Administrative Agent shall notify the Company and the Banks that
the circumstances causing such suspension no longer exist.
(d) If prior to the commencement of the Interest Period for any Borrowing
the Majority Banks notify the Administrative Agent (and the Administrative Agent
notifies the Company) that, by reason of circumstances generally affecting the
London or Paris interbank market, as the case may be, the LIBO Rate does not
adequately reflect the cost to such Banks of funding their Advances constituting
part of such Borrowing, the rate of interest applicable to each such Advance for
such Interest Period shall be the Applicable Margin plus the cost to each such
Bank from time to time of funding its Advance constituting part of such
Borrowing. A certificate or certificates of such Bank, given in good faith, as
to such cost of funding shall be conclusive and binding on each Borrower in the
absence of manifest error.
(e) If the Company shall fail to select the duration of the Interest Period
for any LIBO Rate Advances in accordance with the provisions contained in the
definition of "Interest Period" in Section 1.01, the Administrative Agent will
forthwith so notify the Company and the Banks and such Advances will be made as
Base Rate Advances.
SECTION 2.09. Conversion and Continuation of Advances.
(a) The Company may on any Business Day, upon notice given to the
Administrative Agent not later than 12:00 noon (New York City time) on the third
Business Day (or if the proposed Conversion relates to Advances denominated in
an Alternate Currency, 12:00 noon (London 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 or any portion of the outstanding Advances of one
Type comprising part of th same Borrowing into Advances of the other Type in the
same Currency; provided, that in the case of any such Conversion of a LIBO Rate
Advance into a Base Rate Advance on a day other than the last day of an Interest
Period therefor, the Borrower of such LIBO Rate Advance shall reimburse the
Banks in respect thereof pursuant to Section 8.04(c). Each such notice of a
Conversion shall, within the restrictions specified above, specify (i) the date
of such Conversion, (ii) the Advances or portions thereof to be
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Converted, and (iii) if such Conversion is into LIBO Rate Advances, the duration
of the Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on each Borrower. Each portion of the Advances Converted
as herein provided shall be in an aggregate amount of (x) in the case of a
Conversion of Advances denominated in Dollars, $10,000,000 or an integral
multiple of $1,000,000 in excess thereof and (y) in the case of a Conversion of
Advances denominated in any Approved Foreign Currency, the Foreign Currency
Equivalent of $5,000,000 or an integral multiple of $1,000,000 in excess thereof
(rounded downwards to the nearest 1,000 units of such Approved Foreign
Currency).
(b) The Company may on any Business Day, upon notice given to the
Administrative Agent not later than 12:00 noon (New York City time) on the third
Business Day (or if the proposed Continuation relates to Advances denominated in
an Alternate Currency, 12:00 noon (London time) on the third Business Day) prior
to the date of the proposed Continuation and subject to the provisions of
Sections 2.08 and 2.12, Continue all or any portion of the outstanding LIBO Rate
Advances comprising part of the same Borrowing into LIBO Rate Advances in the
same Currency; provided, that any such Continuation of a LIBO Rate Advance shall
be made only on the last day of an Interest Period therefor. Each such notice of
a Continuation shall, within the restrictions specified above, specify (i) the
date of such Continuation, (ii) the Advances or portions thereof to be
Continued, and (iii) if such Continuation is of a LIBO Rate Advances, the
duration of the Interest Period for each such Advance. Each notice of
Continuation shall be irrevocable and binding on each Borrower. Each portion of
the Advances Continued as herein provided shall be in an aggregate amount of (x)
in the case of a Continuation of Advances denominated in Dollars, $10,000,000 or
an integral multiple of $1,000,000 in excess thereof and (y) in the case of a
Continuation of Advances denominated in any Approved Foreign Currency, the
Foreign Currency Equivalent of $5,000,000 or an integral multiple of $1,000,000
in excess thereof (rounded downwards to the nearest 1,000 units of such Approved
Foreign Currency).
(c) On the date on which the aggregate unpaid principal amount of LIBO Rate
Advances comprising any Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $2,500,000, such Advances shall automatically Convert
into Base Rate Advances.
(d) Upon the occurrence and during the continuance of any Event of Default
or any Default under Section 6.01(b) and upon notice from the Administrative
Agent to the Company at the request of the Majority Banks, (i) each LIBO Rate
Advance will automatically, on the last day of the Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Banks to make,
or to Convert Advances into, or to Continue Advances as, LIBO Rate Advances
shall be suspended.
(e) In the event that the Company fails to give a notice of Continuation of
a LIBO Rate Advance as provided in subsection (b) above, such LIBO Rate Advance
shall automatically be Converted into a Base Rate Advance on the last day of the
Interest Period therefor.
Credit Agreement
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SECTION 2.10. Optional and Mandatory Prepayments of Advances.
(a) Prepayments Generally. Each Borrower may prepay the Advances made to
such Borrower only as provided in subsection (b) below.
(b) Optional Prepayments. The Company may, upon giving notice to the
Administrative Agent (and in the case of prepayment of a Swing Line Advance, the
Swing Line Bank) not later than 11:00 a.m. New York City time on the date of
prepayment, in the case of a Base Rate Advance or a Swing Line Advance, and not
later than two Business Days prior to the date of prepayment in the case of a
LIBO Rate Advance, in each case stating the Advances to be prepaid and the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given, the Borrower of such Advances shall, prepay the outstanding
principal amounts of such Advances in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount prepaid;
provided, that (i) each partial prepayment of a Revolving Credit Advance shall
be in an aggregate principal amount not less than (x) in the case of Revolving
Credit Advances denominated in Dollars, $10,000,000 or an integral multiple of
$1,000,000 in excess thereof and (y) in the case of Revolving Credit Advances
denominated in any Approved Foreign Currency, the Foreign Currency Equivalent of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof (rounded
downwards to the nearest 1,000 units of such Approved Foreign Currency), (ii)
each partial prepayment of a Swing Line Advance shall be in an aggregate
principal amount not less than $1,000,000 or an integral multiple thereof and
(iii) in the case of any such prepayment of a LIBO Rate Advance on a day other
than the last day of an Interest Period therefor, such Borrower shall reimburse
the Banks in respect thereof pursuant to Section 8.04(c).
(c) Mandatory Prepayments. If at any time the aggregate amount of all
Advances (for which purpose the amount of any Advance that is denominated in a
Foreign Currency shall be deemed to be the Dollar Equivalent thereof as of the
date of determination) exceeds 105% of the aggregate amount of the Commitments
as then in effect, the Administrative Agent shall use all reasonable efforts to
give prompt notice thereof to the Company, and the Company shall, upon receipt
of such notice, cause th Advances forthwith to be prepaid in an amount so that
after giving effect thereto the aggregate outstanding principal amount of the
Advances (determined as aforesaid) does not exceed the aggregate amount of the
Commitments; provided, that, any such payment shall be accompanied by any
amounts payable under Section 8.04(c). The determinations of the Administrative
Agent hereunder shall be conclusive and binding on the Borrowers and the Banks
in the absence of manifest error.
SECTION 2.11. Increased Costs.
(a) If, due to either (i) the introduction of or any change (other than any
change relating to taxes (as to which Section 2.14 applies) or any change by way
of imposition or increase of reserve requirements included in the LIBO Rate
Reserve Percentage) in or in the interpretation of (to the extent any such
introduction or change occurs after the date hereof) any law or regulation or
(ii) the compliance with any guideline or request of any central bank or other
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Governmental Authority adopted or made after the date hereof (whether or not
having the force of law), there shall be any increase deemed by such Bank to be
material in the cost to any Bank of agreeing to make or making, funding or
maintaining LIBO Rate Advances denominated in any Currency, each Borrower shall
from time to time, within 30 days after delivery by such Bank to the Company
(with a copy to the Administrative Agent) of a certificate as to the amount of
(and specifying in reasonable detail the basis for) such increase cost, pay
(subject to Section 2.11(c)) to the Administrative Agent for the account of such
Bank the amount of the increased costs set forth in such certificate (which
certificate shall be conclusive and binding for all purposes of this Agreement,
absent manifest error); provided, that, before making any such demand, each Bank
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Applicable Lending Office
if the making of such designation would avoid the need for, or reduce the amount
of, such increased cost and would not, in the reasonable judgment of such Bank,
be otherwise disadvantageous to such Bank.
(b) (i) If any Bank determines that compliance with any law or
regulation enacted or introduced after the date hereof or any guideline or
request of any central bank or other Governmental Authority adopted or made
after the date hereof (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by
such Bank or any corporation controlling such Bank deemed by such Bank to
be material and that the amount of such capital is increased by or based
upon the existence of such Bank's Commitment and other commitments of this
type, or the Advances, then, within 30 days after delivery by such Bank to
the Company (with a copy to the Administrative Agent) of a certificate as
to (and specifying in reasonable detail the basis for) the Additional
Amounts (as hereinafter defined) requested by such Bank, the Company shall
pay (subject to Section 2.11(c)) to the Administrative Agent for the
account of such Bank, from time to time a specified by such Bank, the
amount specified in such certificate (which certificate shall be conclusive
and binding for all purposes, absent manifest error); provided, that,
before making any such demand, each Bank agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions)
to designate a different Applicable Lending Office if the making of such a
designation would avoid the need for, or reduce the amount of, such
increased cost and would not, in the reasonable judgment of such Bank, be
otherwise disadvantageous to such Bank.
(ii) For purposes hereof, the "Additional Amounts" that may be
requested by any Bank under this Section 2.11(b) means such amounts as such
Bank shall reasonably determine to be sufficient to compensate such Bank or
any corporation controlling such Bank for any costs that such Bank
reasonably determines are attributable to the maintenance by such Bank (or
such corporation) of capital in respect of its Commitment or the Advances
hereunder (such compensation to include, without limitation, an amount
equal to any reduction of the rate of return on assets or equity of such
Bank (or such corporation) to a level below that which such Bank (or such
corporation) could have
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achieved but for the enactment or introduction of such law or regulation or
the adoption or making of such guideline or request).
SECTION 2.12. Illegality. Notwithstanding any other provision of this
Agreement, if any Bank shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other Governmental
Authority asserts that it is unlawful, for such Bank or its LIBO Lending Office
to perform its obligations hereunder to make LIBO Rate Advances or to fund or
maintain LIBO Rate Advances hereunder, then, on notice thereof and demand
therefor by such Bank to the Company through the Administrative Agent, (a) the
obligation of the Banks to make or to Convert Advances into, or Continue
Advances as, LIBO Rate Advances shall be suspended until the Administrative
Agent shall notify the Company and the Banks that the circumstances causing such
suspension no longer exist and (b) the Borrowers shall upon demand prepay in
full all LIBO Rate Advances of all Banks then outstanding, together with
interest accrued thereon, unless the Borrowers, within five Business Days of
notice from the Administrative Agent, Convert all LIBO Rate Advances of all the
Banks then outstanding into Base Rate Advances in accordance with Section 2.09;
provided, that, before making any such demand, such Bank agrees to use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different LIBO Lending Office if the making of such
a designation would allow such Bank or its LIBO Lending Office to continue to
perform its obligations to make LIBO Rate Advances or to continue to fund or
maintain LIBO Rate Advances and would not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank.
SECTION 2.13. Payments and Computations.
(a) (i) Except to the extent otherwise provided herein, all payments
of principal of and interest on any Advance denominated in Dollars, and all
Facility Fees and other amounts (other than the principal of and interest
on any Advance denominated in a Foreign Currency) to be paid by the
Borrowers under this Agreement and the Notes shall be made in Dollars, and
all payments of principal of and interest on any Advance denominated in a
Foreign Currency shall be made in such Foreign Currency in each case in
immediately available funds, without set-off or counterclaim, to the
Administrative Agent's Account for the Currency in which such Advance or
other amount is denominated, not later than 11:00 a.m. Local Time on the
date on which such payment shall become due (each payment made after such
time on such due date to be deemed to have been made on the next Business
Day); provided, that if a new Advance is to be made to a Borrower by a Bank
on a date on which such Borrower is to repay any principal of an
outstanding Advance by such Bank in the same Currency, such Bank shall
apply the proceeds of such new Advance to the payment of the principal to
be repaid and only an amount equal to the difference between the principal
to be borrowed and the principal to be repaid shall be made available by
such Bank to the Administrative Agent or paid by such Borrower to the
Administrative Agent, as the case may be.
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(ii) The Administrative Agent will promptly cause to be distributed
like funds relating to the payment of principal, interest or fees ratably
(other than amounts payable pursuant to Section 2.07, 2.11, 2.14 or
8.04(c)) to the Banks for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any other amount
payable to any Bank to such Bank for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this
Agreement.
(iii) Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(c), from and after the effective date specified in such
Assignment and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby
to the Bank assignee thereunder, and the parties to such Assignment and
Acceptance shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves.
(b) All computations of interest based on the Base Rate shall be made by
the Administrative Agent on the basis of a year of 365 or 366 days, as the case
may be, and all computations of interest based on the LIBO Rate and the Federal
Funds Rate and of Facility Fees shall be made by the Administrative Agent, and
all computations of interest pursuant to Section 2.07 shall be made by a Bank,
on the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or Facility Fees are payable. Each determination by the
Administrative Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes would be due on a day
other than a Business Day, such due date shall be extended to the next
succeeding Business Day, and any such extension of such due date shall in such
case be included in the computation of payment of interest or fees, as the case
may be; provided, however, if such extension would cause payment of interest on
or principal of LIBO Rate Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business Day.
(d) Unless the Administrative Agent shall have received notice from the
Company prior to the date on which any payment is due to the Banks hereunder
that a Borrower will not make such payment in full, the Administrative Agent may
assume that such Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Bank on such due date an amount
equal to the amount then due suc Bank. If and to the extent that such Borrower
shall not have so made such payment in full to the Administrative Agent, each
Bank shall repay to the Administrative Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for each day from the
date such amount is distributed to such Bank until the date such Bank repays
such amount to the Administrative Agent, at the Federal Funds Rate.
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(e) If a Borrower shall fail to pay any principal of any Advance when due
(whether at stated maturity, by acceleration, by mandatory prepayment or
otherwise), the unpaid portion of such Advance shall, if such Advance is not
denominated in Dollars, automatically be redenominated in Dollars on the due
date thereof (or, if such due date is a day other than the last day of the
Interest Period therefor, on the last day of such Interest Period) in an amount
equal to the Dollar Equivalent thereof on the date of such redenomination and
such principal shall be payable on demand; and if such Borrower shall fail to
pay any interest on any Advance that is not denominated in Dollars, such
interest shall automatically be redenominated in Dollars on the due date thereof
(or, if such due date is a day other than the last day of the Interest Period
therefor, on the last day of such Interest Period) in an amount equal to the
Dollar Equivalent thereof on the date of such redenomination and such interest
shall be payable on demand.
SECTION 2.14. Taxes.
(a) (i) Subject to Section 2.14(f), any and all payments by the
Borrowers 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 Bank and the Administrative Agent, taxes imposed on its net
income, and franchise taxes imposed on it in lieu of net income taxes, b
the jurisdiction under the laws of which such Bank or the Administrative
Agent (as the case may be) is organized or any political subdivision
thereof or by any other jurisdiction as a result of a present or former
connection between such Bank or the Administrative Agent and such
jurisdiction and, in the case of each Bank, taxes imposed on its net
income, and franchise taxes imposed on it in lieu of net income taxes, by
the jurisdiction of such Bank's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes").
(ii) If a Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable by such Borrower hereunder or under any
Note to any Bank or the Administrative Agent, (i) subject to Section
2.14(f), the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.14) of Taxes such Bank or the
Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions of Taxes been made, (ii)
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.
(b) In addition, each Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made by such Borrower hereunder or under the
Notes or from the execution,
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delivery or registration of, or otherwise with respect to, this Agreement or the
Notes (hereinafter referred to as "Other Taxes").
(c) Subject to Section 2.14(f), each Borrower will indemnify each Bank and
the Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.14) paid by such Bank or the Administrative
Agent (as the case may be) in respect of Advances made to such Borrower and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the date
such Bank or the Administrative Agent (as the case may be) makes written demand
therefor, accompanied by a calculation in reasonable detail of the amount
demanded and evidence of the Taxes or Other Taxes (including, without
limitation, taxes of any kind imposed by any jurisdiction or amounts payable
under this Section 2.14) imposed on or paid by the Administrative Agent or such
Bank.
(d) Within 30 days after the date of any payment of Taxes by a Borrower,
such Borrower will furnish to the Administrative Agent, at its address referred
to in Section 8.02, the original or a certified copy of a receipt evidencing
payment thereof.
(e) (i) With respect to any Advance made to a Borrower that is not a
Foreign Borrower, each Bank that is entitled to any exemption from or
reduction of withholding tax with respect to payments hereunder and under
the Notes payable to such Bank shall, on or prior to the date of its
execution and delivery of this Agreement (in the case of each Bank that is
a signatory hereto) and on the date of the Assignment and Acceptance
pursuant to which it becomes a Bank (in the case of each other Ban that
becomes a party hereto pursuant to Section 2.04(a) or 8.07), and from time
to time thereafter if requested in writing by any Borrower (but only so
long as such Bank remains lawfully able to do so), provide such Borrower
with such documentation prescribed by applicable law and reasonably
requested by such Borrower to permit payments by such Borrower under this
Agreement and the Notes to be made without withholding or at a reduced rate
of withholding. Each Bank hereby agrees to use reasonable efforts to inform
the Company of any such documentation or other requirements of which it is
aware that may provide an exemption from or reduction in the rate of
withholding applicable to payments hereunder to such Bank. Notwithstanding
any other provision of this Agreement to the contrary, with respect to any
Advance made to any Borrower that is not a Foreign Borrower, Taxes shall
not include (and such Borrower shall not be responsible for): (x) any
taxes, levies, imposts, deductions, charges o withholdings that would be
imposed on any payment hereunder or under a Note to a Bank under the law at
the time such Bank first becomes a party to this Agreement and (y) any
other taxes, levies, imposts, deductions, charges or withholdings imposed
on any payment hereunder or under a Note other than such amounts imposed by
reason of (A) a change in law after the date such Bank becomes a party to
this Agreement or (B) a change in the location of such Bank's Applicable
Lending Office pursuant to Section 2.14(g).
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(ii) With respect to any Advance made to a Foreign Borrower, each Bank
that is entitled to any exemption from or reduction of withholding tax with
respect to payments hereunder and under the Notes payable to such Bank
shall, from time to time as requested in writing by any Borrower (but only
so long as such Bank remains lawfully able to do so), provide such Borrower
with such documentation prescribed by applicable law and reasonably
requested by such Borrower to permit payments by such Borrower under this
Agreement and the Notes to be made without withholding or at a reduced rate
of withholding. Each Bank hereby agrees to use reasonable efforts to inform
the Borrower of any such documentation or other requirements of which it is
aware that may provide an exemption from or reduction in the rate in
withholding applicable to payments hereunder to such Bank.
(f) For any period with respect to which a Bank has failed to provide a
Borrower with the appropriate documentation 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 documentation originally was required to be provided, or if such
documentation otherwise is not required under the first sentence of
paragraph(e)(i) or (ii) above), such Bank shall not be entitled to
indemnification by a Borrower under Section 2.14(a) or (c) with respect to Taxes
imposed by the jurisdiction with respect to which such failure occurred;
provided, however, that should a Bank become subject to Taxes because of its
failure to deliver documentation required hereunder, the Borrowers shall take
such steps as the Bank shall reasonably request to assist the Bank to recover
such Taxes.
(g) Any Bank claiming any additional amounts payable pursuant to this
Section 2.14 shall use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office(s) if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Bank, be otherwise
disadvantageous to such Bank. In addition, each Bank shall use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) not to change the jurisdiction of its Applicable Lending Office(s)
if the making of such a change would increase the aggregate amount payable by
the Borrowers pursuant to this Section 2.14.
SECTION 2.15. Pro Rata Treatment. Except to the extent otherwise provided
herein:
(a) each Borrowing under Section 2.01 hereof shall be made from the
Banks pro rata according to their respective Commitments;
(b) each payment of Facility Fee under Section 2.03(a) shall be made
for the account of the Banks, and each termination or reduction of the
amount of the Commitments under Section 2.04 shall be applied to the
respective Commitments of the Banks, pro rata according to the amounts of
their respective Commitments;
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(c) LIBO Rate Advances denominated in the same Currency and having the
same Interest Period shall be allocated pro rata among the Banks according
to their respective Commitments;
(d) each payment or prepayment by a Borrower of principal of Advances
of any Type and denominated in any Currency shall be made for the account
of the Banks pro rata in accordance with the respective unpaid principal
amounts of the Advances of such Type and denominated in such Currency held
by them; and
(e) each payment by a Borrower of interest on Advances of any Type and
denominated in any Currency shall be made for the account of the Banks pro
rata in accordance with the amounts of interest on Advances of such Type
and denominated in such Currency then due and payable to them. --- ----
SECTION 2.16. Sharing of Payments, Etc. If any Bank shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise), in Dollars or any other Currency, on account of the
Advances made by it (other than pursuant to Section 2.07, 2.11, 2.14 or 8.04(c))
in excess of its ratable share of payments on account of the Advances, as the
case may be, obtained by all the Banks, such Bank shall forthwith purchase from
the other Banks such participations in the Advances made by them as shall be
necessary to cause such purchasing Bank to share the excess payment ratably with
each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Bank, such purchase from
each Bank shall be rescinded and such Bank shall repay to the purchasing Bank
the purchase price to the extent of such recovery together with an amount equal
to such Bank's ratable share (according to the proportion of (a) the amount of
such Bank's required repayment to (b) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. Each Borrower
agrees that any Bank so purchasing a participation from another Bank pursuant to
this Section 2.16 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Bank were the direct creditor of such Borrower
in the amount of such participation.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Borrowing by the Company. The
obligation of each Bank to make an Advance to the Company on the occasion of the
initial Borrowing by the Company is subject to the condition precedent that the
Administrative Agent shall have received, on or prior to the day of the initial
Borrowing by the Company but no later than May 30, 1998, the following documents
and evidence, each (unless otherwise specified
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below) dated the date of such initial Borrowing and in form and substance
satisfactory to the Administrative Agent and (except for the Notes) in
sufficient copies for each Bank:
(a) The Notes from the Company payable to the order of the respective
Banks.
(b) Certified copies of the charter and by-laws (or equivalent
documents) of the Company and of all corporate authority for the Company
(including, without limitation, board of director resolutions and evidence
of the incumbency, including specimen signatures, of officers) with respect
to the execution, delivery and performance of this Agreement and the Notes
and each other document to be delivered by the Company from time to time in
connection herewith and the extensions of credit hereunder (and the
Administrative Agent and each Bank may conclusively rely on such
certificate until it receives notice in writing from the Company to the
contrary).
(c) A favorable opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., General
Counsel for the Company, substantially in the form of Exhibit C-1, and a
favorable opinion of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, special counsel for
the Company, substantially in the form of Exhibit C-2.
(d) A favorable opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special
New York counsel for the Administrative Agent, substantially in the form of
Exhibit D.
(e) A certificate of a senior officer of the Company certifying that
(i) no Default has occurred and is continuing as of the date thereof, and
(ii) the representations and warranties contained in Section 4.01 are true
and correct on and as of the date thereof as if made on and as of such date
(except to the extent any of such representations and warranties expressly
relate to an earlier date).
(f) Evidence that the principal of and interest on, and all other
amounts owing in respect of, the Debt (including, without limitation, any
contingent or other amounts payable in respect of letters of credit) under
the Existing Credit Agreement shall have been (or shall be simultaneously)
paid in full, that any commitments to extend credit thereunder shall have
been canceled or terminated and that all Guarantees in respect of, and all
Liens securing, any such Debt shall have been released (or arrangements for
such release satisfactory to the Majority Banks shall have been made); in
addition, the Administrative Agent shall have received from any Person
holding any Lien securing any such Debt, such Uniform Commercial Code
termination statements, mortgage releases and other instruments, in each
case in proper form for recording, as the Administrative Agent shall have
requested to release and terminate of record the Liens securing such Debt
(or arrangements for such release and termination satisfactory to the
Majority Banks shall have been made).
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(g) Evidence that the Company shall have received not less than
$100,000,000 of net cash proceeds from the issuance of its common stock in
a public offering thereof registered under the Securities Act of 1933, as
amended.
SECTION 3.02. Conditions Precedent to Initial Borrowing by Subsidiary
Borrowers Party to this Agreement on the Closing Date. The obligation of each
Bank to make an Advance to any Subsidiary Borrower party to this Agreement on
the Closing Date (each, an "Initial Subsidiary Borrower") on the occasion of the
initial Borrowing by such Initial Subsidiary Borrower is subject to the
condition precedent that the Administrative Agent shall have received, on or
prior to the day of the initial Borrowing by such Initial Subsidiary Borrower,
the following documents and evidence, each (unless otherwise specified below)
dated the date of such initial Borrowing and in form and substance satisfactory
to the Administrative Agent and (except for the Notes) in sufficient copies for
each Bank:
(a) The Notes from such Initial Subsidiary Borrower payable to the
order of the respective Banks.
(b) Certified copies of the charter and by-laws (or equivalent
documents) of such Initial Subsidiary Borrower and of all corporate
authority for such Initial Subsidiary Borrower (including, without
limitation, board of director resolutions and evidence of the incumbency,
including specimen signatures, of officers) with respect to the execution,
delivery and performance of this Agreement and the Notes and each other
document to be delivered by such Initial Subsidiary Borrower from time t
time in connection herewith and the extensions of credit hereunder (and the
Administrative Agent and each Bank may conclusively rely on such
certificate until it receives notice in writing from such Initial
Subsidiary Borrower to the contrary).
(c) A favorable opinion of counsel (which counsel shall be reasonably
acceptable as the Administrative Agent), satisfactory to the Administrative
Agent in form and substance, for such Initial Subsidiary Borrower.
SECTION 3.03. Conditions Precedent to Each Borrowing. The obligation of
each Bank to make an Advance on the occasion of each Borrowing (including,
without limitation, the initial Borrowing), and the right of the Borrower to
request a Swing Line Borrowing, shall be subject to the further conditions
precedent that on the date of such Borrowing the following statements shall be
true (and each of the giving of the applicable Notice of Borrowing and the
acceptance by the applicable Borrower of the proceeds of such Borrowing shall
constitute a representation and warranty by the Company and the applicable
Borrower that on the date of such Borrowing such statements are true):
(a) the representations and warranties contained in Section 4.01 (not
including, in the case of any Borrowing after the initial Borrowing
hereunder, the representation and warranty set forth in Section 4.01(b))
are true and correct in all material respects on and as of the date of such
Borrowing, before and after giving effect to such Borrowing and to
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the application of the proceeds therefrom, as though made on and as of such
date (except to the extent any of such representations and warranties
expressly relate to an earlier date), and
(b) no Default has occurred and is continuing, or would result from such
Borrowing or from the application of the proceeds thereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Company and each Borrower
that is not a Foreign Borrower jointly and severally represent and warrant, and
each Borrower that is a Foreign Borrower severally represents and warrants
(solely with respect to the representations and warranties contained in clauses
(c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (n), (o) and (p) of this
Section 4.01 to the extent applicable to such Foreign Borrower and its
Subsidiaries), that:
(a) Financial Condition. The Consolidated balance sheet of the Company
and its Consolidated Subsidiaries as at December 31, 1997 and the related
Consolidated statements of income and of cash flows for the fiscal year
ended on such date, reported on by Price Waterhouse LLP, copies of which
have heretofore been furnished to each Bank, present fairly the
Consolidated financial condition of the Company and its Consolidated
Subsidiaries as at such date, and the Consolidated results of their
operations and their Consolidated cash flows for the fiscal year then
ended. All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the period involved (except as approved by such
accountants or a Responsible Officer of the Company, as the case may be,
and as disclosed therein). Neither the Company nor any of its Consolidated
Subsidiaries had, at December 31, 1997, any material contingent liability
or liability for taxes, or any long-term lease or unusual forward or
long-term commitment, including, without limitation, any interest rate or
foreign currency swap or exchange transaction, which is not reflected in
the foregoing statements or in the notes thereto.
(b) No Change. Since December 31, 1997, there has been no development
or event which has had or could reasonably be expected to have a Material
Adverse Effect.
(c) Existence; Compliance with Law. Each Borrower (i) is duly
organized and validly existing under the laws of the jurisdiction of its
organization and, where applicable and except where the failure to be so
could not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect, is in good standing under the laws of the
jurisdiction of its organization, (ii) has the power and authority, and
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the legal right, to own and operate its Property, to lease the Property it
operates as lessee and to conduct the business in which it is currently
engaged, (iii) is duly qualified as a foreign organization and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of Property or the conduct of its business requires such
qualification, except where the failure to be so qualified and/or in good
standing could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, and (iv) is in compliance with
all Requirements of Law except to the extent that the failure to comply
therewith could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(d) Corporate Power; Authorization; Enforceable Obligations. Each
Borrower has the power and authority, and the legal right, to make, deliver
and perform this Agreement and to borrow hereunder and has taken all
necessary action to authorize the borrowings on the terms and conditions of
this Agreement and the Notes and to authorize the execution, delivery and
performance of this Agreement and the Notes to which it is a party. No
consent or authorization of, filing with, notice to or other act by or in
respect of (including any exchange control approval), any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or the Notes. This Agreement has been, and
the Notes to which it is a party will be, duly executed and delivered on
behalf of such Borrower. This Agreement constitutes, and the Notes to which
it is a party when executed and delivere will constitute, the legal, valid
and binding obligations of such Borrower enforceable against such Borrower
in accordance with their terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
(e) No Legal Bar. The execution, delivery and performance by each
Borrower of this Agreement and the Notes to which such Borrower is a party,
the borrowings hereunder and the use of the proceeds thereof will not
violate any Requirement of Law or Contractual Obligation of such Borrower
or of any of its Subsidiaries and will not result in, or require, the
creation or imposition of any Lien on any of its or their respective
Properties pursuant to any such Requirement of Law or Contractual
Obligation.
(f) No Material Litigation. No litigation, investigation or proceeding
of or before any arbitrator or Governmental Authority is pending or, to the
knowledge of each Borrower, threatened by or against such Borrower or any
of its Subsidiaries or against any of its or their respective Properties
(i) with respect to any of this Agreement, the Notes or any of the
transactions contemplated hereby or thereby or (ii) which could reasonably
be expected to have a Material Adverse Effect.
(g) No Default. Neither any Borrower nor any of its Subsidiaries is in
default under or with respect to any of its Contractual Obligations in any
respect which could
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reasonably be expected to have a Material Adverse Effect. No Default has
occurred and is continuing.
(h) Ownership of Properties; Liens. Each Borrower and each of its
Subsidiaries has good record and marketable title in fee simple to all real
Property owned by it and such Borrower and each of its Subsidiaries has a
valid leasehold interest or occupancy rights with respect to all real
Property leased or occupied pursuant to the Material Leases, and none of
such owned real Property is subject to any Lien except Liens permitted by
Section 5.02(b). Such Borrower and each of its Subsidiaries has such title
to their respective personal Property, tangible and intangible, as is
necessary to conduct their respective businesses in the same manner as such
businesses have been conducted, and none of such Property is subject to any
Lien except as permitted by Section 5.02(b).
(i) Intellectual Property. Each Borrower and each of its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights,
technology, know-how and processes necessary for the conduct of its
business as currently conducted (the "Intellectual Property") except for
those the failure to own or license which could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. No
claim has been asserted and is pending by any Person challenging or
questioning the use by such Borrower or any of its Subsidiaries of any such
Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does such Borrower know of any valid basis for
any such claim, except for any such claims which could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
The use of such Intellectual Property by such Borrower and its Subsidiaries
does not infringe on the rights of any Person, except for such claims and
infringements that, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
(j) No Burdensome Restrictions. No Requirement of Law or Contractual
Obligation of each Borrower or any of its Operating Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
(k) Taxes. Each Borrower and each of its Subsidiaries has filed or
caused to be filed all tax returns which, to the knowledge of such
Borrower, are required to be filed and has paid all taxes shown to be due
and payable on said returns or on any assessments made against it or any of
its Property and all other taxes, fees or other charges imposed on it or
any of its Property by any Governmental Authority (other than any such
taxes, fees or other charges the amount or validity of which are currently
being contested in good faith by appropriate proceedings and with respect
to which reserves in conformity with GAAP have been provided on the books
of such Borrower or its Subsidiaries, as the case may be, and other than
where failures timely and properly to file could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect);
no tax Lien has been filed, and, to the knowledge of such Borrower, no
claim is being asserted, with respect to any suc tax, fee or other charge
(other than, such Liens,
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taxes, fees and other charges as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect).
(l) Margin Regulations. No part of the proceeds of any Advances will
be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U of the
Board of Governors of the Federal Reserve System as now and from time to
time hereafter in effect.
(m) ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302
of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Plan
or is reasonably expected to occur, and each Plan has complied in all
material respects with the applicable provisions of ERISA and the Code. No
termination of a Single Employer Plan has occurred, no Lie in favor of the
PBGC or a Plan has arisen, during such five-year period, and neither any
Borrower nor any Commonly Controlled Entity has received any notice
relating to an intent to terminate any such Single Employer Plan or impose
any such Lien. Except as set forth on Schedule I, the present value of all
accrued benefits under each Single Employer Plan (based on those
assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made, exceed the
fair market value of the assets of such Plan allocable to such accrued
benefits. Neither such Borrower nor any Commonly Controlled Entity has had
a complete or partial withdrawal from any Multiemployer Plan, and neither
such Borrower nor any Commonly Controlled Entity would become subject to
any liability under ERISA if such Borrower or any such Commonly Controlled
Entity were to withdraw completely from all Multiemployer Plans as of the
valuation date most closely preceding the date on which this representation
is made or deemed made. No filing has been made pursuant to Section 412(d)
of the Code or Section 303(d) of ERISA of an application for waiver of the
minimum funding standard of any Single Employer Plan. No such Multiemployer
Plan is in Reorganization or Insolvent.
(n) Investment Company Act; Other Regulations. No Borrower is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No
Borrower is subject to regulation under any United States Federal or state
statute or regulation (other than Regulation X of the Board of Governors of
the Federal Reserve System) which limits its ability to incur Debt.
(o) Use of Proceeds. The proceeds of the Advances will be used by the
Borrowers (i) to repay Debt under the Existing Credit Agreement, (ii) for
acquisitions that are not Hostile Acquisitions in accordance with Section
5.02(c) and (iii) for other general corporate purposes.
(p) Environmental Matters.
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(i) To the best knowledge of each Borrower, the facilities and
Property owned, leased or operated by such Borrower or any of its
Subsidiaries (the "Applicable Properties") do not contain, and have
not previously contained, any Materials of Environmental Concern in
amounts or concentrations which (x) constitute or constituted a
violation of, or (y) could reasonably be expected to give rise to
liability under, any Environmental Law, except in either case insofar
as such violation or liability, or any aggregation thereof, could not
reasonably be expected to have a Material Adverse Effect.
(ii) To the best knowledge of such Borrower, the Applicable
Properties and all operations at the Applicable Properties are in
compliance, and have in the last five years been in compliance, in all
material respects with all applicable Environmental Laws, and there is
no contamination at, under or about the Properties or violation of any
Environmental Law with respect to the Applicable Properties or the
business operated by the Borrower or any of its Subsidiaries (the
"Business" except in either case insofar as any such noncompliance,
contamination or violation, or any aggregation thereof, could not
reasonably be expected to have a Material Adverse Effect.
(iii) Neither such Borrower nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the
Applicable Properties or the Business, nor does such Borrower have
knowledge or reason to believe that any such notice will be received
or is being threatened, except insofar as such notice or threatened
notice, or any aggregation thereof, could not reasonably be expected
to have a Material Adverse Effect.
(iv) Materials of Environmental Concern have not been transported
or disposed of from the Applicable Properties in violation of, or in a
manner or to a location which could reasonably be expected to give
rise to liability under, any Environmental Law, nor have any Materials
of Environmental Concern been generated, treated, stored or disposed
of at, on or under any of the Applicable Properties in violation of,
or in a manner that could reasonably be expected to give rise to
liability under, any applicable Environmental Law, except insofar as
any such violation or liability referred to in this paragraph, or any
aggregation thereof, could not reasonably be expected to have a
Material Adverse Effect.
(v) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of such Borrower, threatened,
under any Environmental Law to which such Borrower or any Subsidiary
is or will be named as a party with respect to the Applicable
Properties or the Business, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding under
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any Environmental Law with respect to the Applicable Properties or the
Business, except insofar as such proceeding, action, decree, order or
other requirement, or any aggregation thereof, could not reasonably be
expected to have a Material Adverse Effect.
(vi) To the best knowledge of such Borrower, there has been no
release or threat of release of Materials of Environmental Concern at
or from the Properties, or arising from or related to the operations
of such Borrower or any Subsidiary in connection with the Applicable
Properties or otherwise in connection with the Business, in violation
of or in amounts or in a manner that could reasonably give rise to
liability under Environmental Laws, except insofar as any such
violation o liability referred to in this paragraph, or any
aggregation thereof, could not reasonably be expected to have a
Material Adverse Effect.
(q) Accuracy of Information. No statement or information contained in
this Agreement, or any other document, certificate or written statement
furnished to the Administrative Agent or the Banks or any of them, by or on
behalf of any Borrower for use in connection with the transactions
contemplated by this Agreement (including, without limitation, any
financial information furnished pursuant to Section 5.01(a)), taken as a
whole, contained as of the date such statement, information, document,
certificate or written statement was so furnished any untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements contained herein or therein in light of the
circumstances in which they were was made not misleading. The projections
and pro forma financial information, if any, contained in the materials
referenced above are based upon good faith estimates and assumptions
believed by management of such Borrower to be reasonable at the time made,
it being recognized by the Banks that such financial information as it
relates to future events is not to be viewed as fact and that actual
results during the period or periods covered by such financial information
may differ from the projected results set forth therein. There is no fact
known to any Borrower that could reasonably be expected to have a Material
Adverse Effect that has not been expressly disclosed herein or in such
other documents, certificates and written statements furnished to the
Administrative Agent for the benefit of the Banks for use in connection
with the transactions contemplated hereby.
(r) Insurance. Each Borrower and its Operating Subsidiaries maintain
with financially sound and reputable insurance companies insurance on (or,
to the extent consistent with prudent business practice, a program of
self-insurance with respect to) all their respective Property and
operations in at least such amounts and against at least such risks (but
including in any event public liability, product liability and business
interruption) as are usually insured against in the same general area by
companies engaged in the same or a similar business.
(s) Year 2000. The Company has reviewed its operations and those of
its Subsidiaries with a view to assessing whether it or its Subsidiaries'
respective businesses will, in the receipt, transmission, processing,
manipulation, storage, retrieval,
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retransmission or other utilization of data, be vulnerable to a Year 2000
Problem (as defined below). Based on such review, the Company has no reason
to believe that a Material Adverse Effect could reasonably be expected to
result from a Year 2000 Problem. For purposes of this paragraph (s), "Year
2000 Problem" means any significant risk that computer hardware or software
used in the business or operations of the Company or any of its
Subsidiaries will not, in the case of dates or time periods occurring after
December 31, 1999, function at least as effectively as in the case of dates
or time periods occurring prior to December 31, 1999.
(t) Ranking. The payment obligations of each Borrower hereunder and
under the Notes are and will at all times be unconditional, senior
unsecured and unsubordinated general obligations of such Borrower, and rank
and will at all times rank at least pari passu with all other present and
future unsecured and unsubordinated Debt of such Borrower.
(u) Commercial Activity; Absence of Immunity. Each Foreign Borrower is
subject to civil and commercial law with respect to its obligations under
this Agreement and the Notes, and the making and performance of this
Agreement and the Notes by such Foreign Borrower constitute private and
commercial acts rather than public or governmental acts. No Foreign
Borrower is entitled to any immunity on the ground of sovereignty or the
like from the jurisdiction of any court or from any action, suit or
proceeding, or from set-off or from the service of process in connection
therewith, arising under this Agreement or the Notes, and such Foreign
Borrower's Properties are not entitled to any immunity from attachment
(before or after judgment) or execution.
(v) Legal Form. This Agreement and the Notes are in proper legal form
under the laws of each jurisdiction under whose laws any Foreign Borrower
is organized or in which any Foreign Borrower is domiciled for the
enforcement thereof against such Foreign Borrower. All formalities required
in each such jurisdiction for the legality, validity, enforceability or
admissibility in evidence of this Agreement and the Notes have been
accomplished, and it is not necessary that this Agreement, any Note or any
other document be filed, registered or recorded with, or executed or
notarized before, any court or other Governmental Authority of or in any
such jurisdiction or that any registration charge or stamp or similar tax
be paid for the legality, validity, enforceability or admissibility in
evidence thereof.
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants. So long as any principal of or
interest on any Advance or any Note or any other amount payable hereunder shall
remain outstanding or
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any Bank shall have any Commitment hereunder, the Company and each Borrower that
is not a Foreign Borrower jointly and severally covenant and agree, and each
Foreign Borrower severally covenants and agrees (with respect to itself and its
Subsidiaries only and except with respect to the covenants and agreements
containe in the following clauses (a) and (b) of this Section 5.01), that:
(a) Financial Statements; Compliance Certificates. The Company will
furnish to the Administrative Agent and each Bank:
(i) as soon as available, but ion any event within 100 days after
the end of each fiscal year of the Company, a copy of the Consolidated
balance sheet of the Company and its Consolidated Subsidiaries as at
the end of such year and the related Consolidated statements of income
and retained earnings and of cash flows for such year, setting forth
in each case in comparative form the figures for the previous year,
reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by
Price Waterhouse LLP or other independent certified public accountants
of nationally recognized standing; and
(ii) as soon as available, but in any event not later than 50
days after the end of each of the first three quarters of each fiscal
year of the Company, the unaudited Consolidated balance sheet of the
Company and its Consolidated Subsidiaries as at the end of such
quarter and the related unaudited Consolidated statements of income
and retained earnings and of cash flows of the Company and its
Consolidated Subsidiaries for such quarter and the portion of the
fiscal year through the end of such quarter, setting forth in each
case in comparative form the figures for the previous year, certified
by a Responsible Officer of the Company as being fairly stated in all
material respects (subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with
GAAP applied consistently throughout the periods reflected therein and with
prior periods (except as approved by such accountants or officer, as the
case may be, and disclosed therein).
(b) Certificates; Other Information. The Company will furnish to the
Administrative Agent and each Bank:
(i) concurrently with the delivery of the financial statements
referred to in Section 5.01(a)(i), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default, except as specified in such certificate;
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(ii) concurrently with the delivery of the financial statements
referred to in Sections 5.01(a)(i) and (ii), a certificate of a
Responsible Officer of the Company, (x) stating that, to the best of
such Responsible Officer's knowledge, during such period each Borrower
has observed or performed all of its covenants and other agreements,
and satisfied every condition, contained in this Agreement to be
observed, performed or satisfied by it, and that such Responsible
Officer has obtained no knowledge of any Default except as specified
in such certificate and (y) setting forth in reasonable detail the
calculations required to determine compliance with Section 5.03,
together with, in the event that there is any change in GAAP
subsequent to the date hereof, a reconciliation of the calculations
used to determine compliance with Section 5.03 to the financial
statements delivered in connection with such certificate;
(iii) within five days after the same are sent, copies of all
financial statements and reports which the Company sends to the
holders of its capital stock generally, and within five days after the
same are filed, copies of all financial statements and reports which
the Company may make to, or file with, the Securities and Exchange
Commission or any successor or analogous Governmental Authority;
(iv) concurrently with the delivery of the financial statements
referred to in Sections 5.01(a)(i) and (ii), in the event that any
Subsidiary of the Company has become an Operating Subsidiary or any
Operating Subsidiary has ceased to constitute an Operating Subsidiary,
in each case during the immediately preceding fiscal quarter (or, in
the case of the financial statements referred to in Section
5.01(a)(i), the fourth fiscal quarter), a notice thereof; and
(v) promptly, such additional financial and other information as
the Administrative Agent or any Bank may from time to time reasonably
request.
(c) Payment of Obligations. Each Borrower will, and will cause each of
its Operating Subsidiaries to, pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all
its obligations of whatever nature, except where the amount or validity
thereof is being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP (or, in the case of a Foreign Operating
Subsidiary, generally accepted accounting principles in effect in the
relevant jurisdiction) with respect thereto have been provided on the books
of such Borrower or its Operating Subsidiaries, as the case may be, and
except to the extent that the failure to so pay, discharge or otherwise
satisfy its obligations could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(d) Conduct of Business and Maintenance of Existence; Compliance with
Contractual Obligations and Requirements of Law. Each Borrower will, and
will cause each of its Operating Subsidiaries to, (i) continue to engage in
business of the same
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general type as conducted by the Company and its Operating Subsidiaries on
the date hereof, together with such other businesses as are reasonably
related or complementary thereto, (ii) preserve, renew and keep in full
force and effect its corporate existence except (x) as otherwise permitted
pursuant to Section 5.02(c) and (y) solely with respect to Operating
Subsidiaries that are not Borrowers and other than by reason of a merger,
consolidation, amalgamation, liquidation, winding up or dissolution, if
failure to do so would not be adverse to the Banks in any material respect,
(iii) take all reasonable action to maintain all rights, privileges and
franchises necessary in the normal conduct of its business except as
otherwise permitted pursuant to Section 5.02(c) and except if failure to do
so would not be adverse to the Banks in any material respect, and (iv)
comply with all Contractual Obligations and Requirements of Law except to
the extent that failure to comply therewith could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(e) Maintenance of Property; Insurance. Each Borrower will, and will
cause each of its Operating Subsidiaries to, (i) keep all material Property
useful and necessary in its business in good working order and condition
(ordinary wear and tear excepted), (ii) maintain with financially sound and
reputable insurance companies insurance on (or, to the extent consistent
with prudent business practice, a program of self-insurance with respect
to) all its Property and operations in at least such amounts and against at
least such risks (but including in any event public liability, product
liability and business interruption) as are usually insured against in the
same general area by companies engaged in the same or a similar business,
and (iii) furnish to the Administrative Agent and each Bank, upon written
request, full information as to the insurance carried.
(f) Inspection of Property; Books and Records; Discussions. Each
Borrower will, and will cause each of its Operating Subsidiaries to, keep
proper books of records and account in conformity with GAAP (or, in the
case of a Foreign Operating Subsidiary, generally accepted accounting
principles in effect or applied in the relevant jurisdiction) and all
Requirements of Law; and permit representatives of any Bank to visit and
inspect any of its Property and examine and make abstracts from an of its
books and records at any reasonable time and as often as may reasonably be
desired and to discuss the business, operations, Property and financial and
other condition of such Borrower and its Subsidiaries with officers and
employees of such Borrower and its Subsidiaries and with its independent
certified public accountants.
(g) Notices. Each Borrower will promptly give notice to the
Administrative Agent and each Bank of:
(i) the occurrence of any Default;
(ii) any (x) default or event of default under any Contractual
Obligation of such Borrower or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect or (y)
litigation, investigation or proceeding which
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may exist at any time as to which there is a reasonable possibility of
an adverse determination and which if adversely determined, could
reasonably be expected to have a Material Adverse Effect;
(iii) the following events, as soon as possible and in any event
within 30 days after such Borrower knows or has reason to know
thereof: (x) the occurrence or expected occurrence of any Reportable
Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC
or a Plan or any withdrawal from, or the termination, Reorganization
or Insolvency of, any Multiemployer Plan or (y) the institution of
proceedings or the taking of any other action by the PBGC or such
Borrower or any Commonly Controlled Entity or any Multiemployer Plan
with respect to the withdrawal from, or the terminating,
Reorganization or Insolvency of, any Plan; and
(iv) any development or event which could reasonably be expected
to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement
of a Responsible Officer of the Company setting forth details of the
occurrence referred to therein and stating what action the relevant
Borrower or Subsidiary proposes to take with respect thereto.
(h) Environmental Laws. Each Borrower will, and will cause each of its
Operating Subsidiaries to:
(i) comply with, and ensure compliance by all tenants and
subtenants, if any, with, all applicable Environmental Laws and obtain
and comply with and maintain, and ensure that all tenants and
subtenants obtain and comply with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by
applicable Environmental Laws, except in any such case to the extent
that failure to do so could not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect; and
(ii) conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required
under Environmental Laws, except to the extent that the failure to do
so could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect, and promptly comply with all lawful
orders and directives of all Governmental Authorities regarding
Environmental Laws, except to the extent that the same are being
contested i good faith by appropriate proceedings and the pendency of
such proceedings could not be reasonably expected to have a Material
Adverse Effect.
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(i) Governmental Authorizations. Each Borrower will promptly from time
to time obtain and maintain in full force and effect all consents or
authorizations of, or approvals by, any Governmental Authority necessary
under the laws of each jurisdiction under whose laws it is organized or in
which it is domiciled for the execution, delivery and performance by it of
this Agreement and the Notes.
(j) Ranking. Each Borrower will promptly take all actions as may be
necessary to ensure that the payment obligations of such Borrower under
this Agreement and the Notes will at all times constitute unconditional,
senior unsecured and unsubordinated general obligations of such Borrower
ranking at least pari passu with all other present and future unsecured and
unsubordinated Debt of such Borrower.
SECTION 5.02. Negative Covenants. So long as any principal of or interest
on any Advance or any Note or any other amount payable hereunder shall remain
outstanding or any Bank shall have any Commitment hereunder, the Company and
each Borrower that is not a Foreign Borrower jointly and severally covenant and
agree, and each Foreign Borrower severally covenants and agrees (with respect to
itself and its Subsidiaries only), that:
(a) Subsidiary Debt. The Company will not permit any of its
Subsidiaries to create, incur, assume or at any time be liable with respect
to any Debt, except for:
(i) Debt owing to the Banks hereunder;
(ii) Debt outstanding on December 31, 1997 and any refinancings,
renewals, extensions or refundings thereof which do not increase the
aggregate principal amount thereof;
(iii) Debt owing to the Company or to other Wholly-Owned
Subsidiaries of the Company; and
(iv) additional Debt in an aggregate principal amount for all
Subsidiaries at any one time outstanding not exceeding $100,000,000.
(b) Liens. The Borrowers will not, and will not permit any of their
Subsidiaries to, create, incur, assume or suffer to exist any Lien of any
kind upon or in any of their respective Property, whether now owned or
hereafter acquired, except for:
(i) Liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings, provided that adequate reserves
with respect thereto are maintained on the books of such Borrower or
its Subsidiaries, as the case may be, in conformity with GAAP (or, in
the case of a Foreign Operating Subsidiary, generally accepted
accounting principles in the relevant jurisdiction);
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(ii) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings or
which are bonded;
(iii) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements;
(iv) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(v) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the Property subject thereto or
materially interfere with the ordinary conduct of the business of such
Borrower or such Subsidiary;
(vi) Liens securing Debt of the Borrowers and their respective
Subsidiaries incurred to finance the acquisition of fixed or capital
assets, provided that (x) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets,
(y) such Liens do not at any time encumber any Property other than the
Property financed by such Debt and (z) the principal amount of Debt
secured by any such Lien shall at no time exceed an amount equal to
100% o the original purchase price of such Property;
(vii) Liens on the Property of a corporation that becomes a
Subsidiary after the date hereof, provided that such Liens existed at
the time such corporation became a Subsidiary and were not created in
anticipation thereof;
(viii) any Lien renewing, extending, refunding or refinancing any
Lien permitted by clause (vi) or (vii) above or (xii) below, provided
that the principal amount of Debt secured by such Lien is not
increased, and such Lien is not extended to other Property;
(ix) Liens on Property of a Subsidiary to secure obligations of
such Subsidiary to a Borrower or another Subsidiary;
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(x) judgment Liens, so long as the finality of such judgment is
being actively contested in good faith by appropriate proceedings and
execution thereon is stayed;
(xi) other Liens securing Debt, provided that the aggregate
principal amount of Debt of the Company and its Subsidiaries secured
by such Liens permitted by this clause (xi) does not at any time
exceed $25,0000,000; and
(xii) Liens set forth in Schedule II;
provided, however, that no Lien otherwise permitted under clause (vi),
(vii), (viii) or (xi) hereof shall be permitted if such Lien secures
Debt which is prohibited under this Agreement.
(c) Fundamental Changes. The Borrowers will not, and will not permit
any of their Subsidiaries to, enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve (or suffer any liquidation
or dissolution), or convey, sell, lease, assign, transfer or otherwise
dispose of (each a "Transfer"), all or substantially all of their
respective Property, except that:
(i) any Subsidiary of a Borrower may be merged, consolidated or
amalgamated with or into such Borrower (provided that such Borrower
shall be the continuing or surviving corporation) or with or into any
one or more other Subsidiaries of the Company;
(ii) any Subsidiary of a Borrower may liquidate, wind-up or
dissolve if such liquidation, winding-up or dissolution is in the best
interests of such Borrower and would not be adverse to the Banks in
any material respect;
(iii) any Subsidiary of a Borrower may Transfer any or all of its
Property (upon voluntary liquidation or otherwise) to the Company or
any other Subsidiary of the Company;
(iv) any Borrower and any Subsidiary of a Borrower may merge,
consolidate or amalgamate with or into, any other Person provided that
(x) both immediately prior to such merger, consolidation or
amalgamation and after giving effect thereto, no Default shall exist,
(y) in the Company's reasonable judgment, a Default under Section 5.03
is not likely to occur on the last day of the fiscal quarter immediate
succeeding such merger, consolidation or amalgamation and (z) in the
case of merger, consolidation or amalgamation involving the Company,
the Company shall be the continuing or surviving corporation and in
the case of a merger consolidation or amalgamation involving any other
Borrower or Subsidiary, such other Borrower or Subsidiary shall be the
continuing or surviving corporation;
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(v) the Borrowers and their Subsidiaries may make Investments
permitted by Section 5.02(d);
(vi) the Borrowers and their Subsidiaries may Transfer obsolete
or worn-out Property in the ordinary course of business;
(vii) the Borrowers and their Subsidiaries may Transfer Property
for not less than fair market value in the ordinary course of
business, provided that the aggregate purchase price for all such
Transfers by the Borrowers and their Subsidiaries after the date
hereof shall not exceed $100,000,000;
(viii) the Borrowers and their Subsidiaries may sell inventory in
the ordinary course of business;
(ix) the Borrowers and their Subsidiaries may sell or discount
without recourse accounts receivable arising in the ordinary course of
business in connection with the compromise or collection thereof; and
(x) the Borrowers and their Subsidiaries may sell the New York
Real Property for not less than fair market value.
(d) Loans, Advances, Acquisitions and Liabilities. The Borrowers will
not, and will not permit any of their Subsidiaries to, make any advance,
loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any Property
constituting a business unit of, or make any other investment in, any
Person ("Investments"), except:
(i) extensions of trade credit in the ordinary course of
business;
(ii) investments in Cash Equivalents;
(iii) any Borrower and any Subsidiary of a Borrower may
consummate any Acquisition provided that (w) both immediately prior to
such Acquisition and after giving effect thereto, no Default shall
exist, (x) in the Company's reasonable judgment, a Default under
Section 5.03 is not likely to occur on the last day of the fiscal
quarter immediate succeeding such Acquisition, (y) in the case of an
Acquisition involving the Company, the Company shall be the continuing
or surviving corporation and in the case of an Acquisition involving
any other Borrower or Subsidiary, such other Borrower or Subsidiary
shall be the continuing or surviving corporation, and (z) such
Acquisition is not a Hostile Acquisition;
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(iv) loans and advances to employees of the Borrowers and their
respective Subsidiaries for travel, entertainment and relocation
expenses and in connection with management incentive plans, in each
case in the ordinary course of business, and loans to officers of the
Borrowers and their respective Subsidiaries in the ordinary course of
business, in an aggregate amount for the Borrowers and their
respective Subsidiaries not to exceed $10,000,000 at any one time
outstanding;
(v) Investments by any Borrower in any other Borrower or in any
Subsidiary of any Borrower and Investments by Subsidiaries of any
Borrower in any Borrower and in any Subsidiary of any Borrower; and
(vi) other Investments (including Investments in any Joint
Venture), provided that the Net Amount of such Investments shall not
exceed, in the aggregate, $100,000,000;
(e) Dividends and Purchase of Stock. At any time when a Default has
occurred and is continuing, none of the Borrowers will, nor will it permit
any of its Subsidiaries to, declare or pay any dividends on any shares of
any class of its capital stock, or make any distributions to partners or
members, or apply any of its Property to the purchase, redemption or other
retirement of, or set apart any sum for the payment of any dividends on, or
for the purchase, redemption or other retirement of, or make any other
distribution by reduction of capital or otherwise in respect of, any shares
of any class of capital stock or other equity ownership interests of any
Borrower, or purchase or acquire any shares of any class of capital stock
or other equity ownership interests of any Borrower except that (i) any
Subsidiary may declare and pay dividends with respect to their capital
stock and (ii) the Company may (x) declare and pay dividends payable solely
in shares of its capital stock and (y pay any dividend declared prior to
the occurrence of such Default (and not in anticipation thereof), provided,
in the case of this clause (y), that such payment is made within 30 days
after the declaration of such dividend.
(f) Transactions with Affiliates. The Borrowers will not, and will not
permit any of their Subsidiaries to, enter into any transaction, including,
without limitation, any purchase, sale, lease or exchange of Property or
the rendering of any service, with any Affiliate unless such transaction is
(i) not otherwise prohibited under this Agreement and (ii) upon fair and
reasonable terms no less favorable to such Borrower or such Subsidiary, as
the case may be, than it would obtain in a comparable arm's length
transaction with a Person which is not an Affiliate.
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SECTION 5.03 Financial Covenants. So long as any principal of or interest
on any Advance or any Note or any other amount payable hereunder shall remain
outstanding or any Bank shall have any Commitment hereunder, the Company and
each Borrower that is not a Foreign Borrower covenant and agree that:
(a) Debt to EBITDA Ratio. They will not permit the Debt to EBITDA
Ratio as at the last day of any fiscal quarter to be greater than 3.25 to
1.0.
(b) Interest Coverage Ratio. They will not permit the Interest
Coverage Ratio as at the last day of any fiscal quarter to be less than
3.50 to 1.0.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Advance when
due in accordance with the terms hereof, whether at maturity, by notice of
intention to prepay or otherwise; or
(b) Any Borrower shall fail to pay any interest on any Advance, or any
Facility Fee or any other fee or amount payable hereunder, within three
days after any such interest or other amount becomes due in accordance with
the terms hereof; or
(c) Any representation or warranty made or deemed made by any Borrower
herein or which is contained in any certificate, document or financial or
other statement furnished by it at any time under or in connection with
this Agreement shall prove to have been incorrect in any material respect
on or as of the date made or deemed made; or
(d) Any Borrower shall default in the observance or performance of any
agreement contained in Section 5.02 of this Agreement; or
(e) Any Borrower shall default in the observance or performance of any
other agreement contained in this Agreement (other than as provided in
paragraphs (a) through (d) of this Section), and such default shall
continue unremedied for a period of 30 days after the earlier of (i) the
date upon which written notice thereof is given to the Company by the
Administrative Agent or the Majority Banks or (ii) the date upon which a
Responsible Officer of any Borrower becomes aware of such default or
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(f) Any Borrower or any of its Subsidiaries shall (i) default in any
payment of principal of or interest of any Debt (other than the Advances)
or any Hedging Obligation, beyond the period of grace (not to exceed 30
days), if any, provided in the instrument or agreement under which such
Debt or Hedging Obligation, as the case may be, was created; or (ii)
default in the observance or performance of any other agreement or
condition relating to any such Debt or such Hedging Obligation or contained
in any instrument or agreement evidencing, securing or relating thereto, or
any other event shall occur or condition exist, the effect of which default
or other event or condition is to cause, or to permit the holder or holders
of such Debt or such Hedging Obligation (or a trustee or agent on behalf of
such holder or holders) to cause, with the giving of notice or the lapse of
time or both if required, such Debt or such Hedging Obligation to become
due prior to its stated maturity; provided, however, that no Default shall
exist under this paragraph unless the aggregate amount of Debt and Hedging
Obligations at any time in respect of which any default or other event or
condition referred to in this paragraph shall have occurred shall be equal
to at least $5,000,000 (or the equivalent in any one or more other
currencies); or
(g) (i) Any Borrower or any of its Domestic Operating Subsidiaries or
Material Foreign Operating Subsidiaries shall commence any case, proceeding
or other action (x) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect
to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (y) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
Property, or any Borrower or any of its Domestic Operating Subsidiaries or
Material Foreign Operating Subsidiaries shall make a general assignment for
the benefit of its creditors; or (ii) there shall be commenced against any
Borrower or any of its Domestic Operating Subsidiaries or Material Foreign
Operating Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (x) results in the entry of an order
for relief or any such adjudication or appointment or (y) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against any Borrower or any of its Domestic
Operating Subsidiaries or Material Foreign Operating Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part
of its Property which results in the entry of an order for any such relief
which shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) any Borrower or any
of its Domestic Operating Subsidiaries or Material Foreign Operating
Subsidiaries shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or any Borrower or any of its Domestic
Operating Subsidiaries or Material Foreign Operating Subsidiaries shall
generally not, or
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shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(h) (i) any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of any
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Majority Banks, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) any Borrower or any
Commonly Controlled Entity shall or in the reasonable opinion of the
Majority Banks is likely to, incur any liability, in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect
to a Plan; and in each case in clauses (i) through (vi) above, such event
or condition, together with all other such events or conditions, if any,
could reasonably be expected to have a Material Adverse Effect; or
(i) One or more judgments or decrees shall be entered against any
Borrower or any of its Subsidiaries involving in the aggregate for the
Borrowers and their respective Subsidiaries, taken as a whole, a liability
(to the extent not paid or fully covered by insurance or third-party
indemnification from third parties which could reasonably be expected to
satisfy any indemnification claim) of $5,000,000 or more, and all such
judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 60 days from the entry thereof; or
(j) A Change in Control shall occur;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Majority Banks, by notice to the Company,
declare the obligation of each Bank to make, Convert and/or Continue Advances to
be terminated, whereupon the same shall forthwith terminate, and (ii) shall at
the request, or may with the consent, of the Majority Banks, by notice to the
Company, declare the Notes, all interest thereon and all other amounts payable
under this Agreement to be forthwith du and payable, whereupon the Notes, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrowers; provided, however, that
in the event of an actual or deemed entry of an order for relief with respect to
any Borrower under the United States Federal Bankruptcy Code or any analogous
statute or law in any jurisdiction outside of the United States, (x) the
obligation of each Bank to make, Convert and/or Continue Advances shall
automatically be terminated and (y) the Notes, all such interest and all such
amounts shall automatically become and be due and payable,
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without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrowers.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Bank hereby appoints and
authorizes the Administrative Agent to take such action as administrative agent
on its behalf and to exercise such powers under this Agreement as are delegated
to the Administrative Agent by the terms hereof, together with such powers as
are reasonably incidental thereto. As to any matters not expressly provided for
by this Agreement (including, without limitation, enforcement or collection of
the Notes), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Banks, and such instructions shall be
binding upon all Banks and all holders of Notes; provided, however, that the
Administrative Agent shall not be required to take any action which exposes the
Administrative Agent to personal liability or which is contrar to this Agreement
or applicable law. The Administrative Agent agrees to give to each Bank prompt
notice of each notice given to it by any Borrower pursuant to the terms of this
Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (a) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Bank which is the payee of such Note, as
assignor, and an assignee as provided in Section 8.07; (b) may consult with
legal counsel (including counsel for the Borrowers), 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; (c) makes no warranty or
representation to any Bank and shall not be responsible to any Bank for any
statements, warranties or representations (whether written or oral) made in or
in connection with this Agreement; (d) shall not have any duty to ascertain or
to inquire as to the performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of any Borrower or to inspect the
Property (including the books and records) of any Borrower or any of their
Subsidiaries; (e) shall not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto; and (f)
shall incur no liability under or in respect of this Agreement by acting upon
any notice, consent,
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certificate or other instrument or writing (which may be by telecopier,
telegram, cable or telex) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its Commitment, the
Advances made by it and the Notes issued to it, Citibank shall have the same
rights and powers under this Agreement as any other Bank and may exercise the
same as though it were not the Administrative Agent; and the term "Bank" or
"Banks" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, and generally engage in any kind
of business with, the Borrowers, any of their Subsidiaries and any Person who
may do business with or own securities of the any Borrower or any such
Subsidiary, all as if Citibank were not the Administrative Agent and without any
duty to account therefor to the Banks.
SECTION 7.04. Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Bank and based on the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate, made its own
credit analysis of the Borrowers and decision to enter into this Agreement. Each
Bank also acknowledges that it will, independently and without reliance upon the
Administrative Agent o any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrowers but without
limiting the reimbursement obligations the Borrowers hereunder), ratably
according to the respective principal amounts of the Notes held by them at the
time indemnification is sought hereunder (or if no Notes are at the time
outstanding, ratably according to the respective amounts of their Commitments at
such time), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Administrative Agent in any way relating to or arising out
of this Agreement or any action taken or omitted by the Administrative Agent
under this Agreement, provided, that no Bank shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Administrative
Agent's gross negligence or willful misconduct. Without limiting the foregoing,
each Bank agrees to reimburse the Administrative Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, to the
extent that the Administrative Agent is not reimbursed for such expenses by the
Borrowers.
SECTION 7.06. Successor Administrative Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Banks and the Company
and may
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be removed at any time with or without cause by the Majority Banks. Upon any
such resignation or removal, the Majority Banks shall have the right to appoint
a successor Administrative Agent from among the Banks that, unless a Default or
Event of Default shall have occurred and then be continuing, is reasonably
acceptable to the Company. If no successor Administrative Agent shall have been
so appointed by the Majority Banks, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation or the Majority Banks' removal of the retiring Administrative Agent,
then the retiring Administrative Agent may, on behalf of the Banks, appoint a
successor Administrative Agent, which shall be a Bank or a commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $100,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this Agreement. After
any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
SECTION 7.07. Syndication Agent, Arranger and Co-Arranger. Neither Bank of
America National Trust and Savings Association, CSI nor BARS shall not have any
rights (except to the extent expressly provided herein) or obligations hereunder
in their respective capacities as Syndication Agent, Arranger and Co-Arranger.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes, nor consent to any departure by any Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Majority Banks, or by the Administrative Agent with the
consent of the Majority Banks, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Banks, or by the Administrative Agent with the
consent of all the Banks do any of the following: (a) waive any of the
conditions specified in Section 3.01, (b) except as provided in Section 2.04(a),
increase the Commitments of such Banks or subject such Banks to any additional
obligations, (c) reduce the principal of, or interest on, the Advances or the
Notes or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Advances or the Notes
or any fees or other amounts payable hereunder, (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Advances or the
Notes, or the number of Banks, which shall be required for the Banks or any of
them to take any action hereunder, (f) amend this Section 8.01, (g) modify the
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definition of the term "Approved Foreign Currency", (h) amend Section 2.15 or
(i) release the Company from its Guarantee of the Guaranteed Obligations;
provided, further, that no amendment, waiver or consent shall, unless in writing
and (i) signed by the Administrative Agent in addition to the Banks required
above to take such action, affect the rights or duties of the Administrative
Agent under this Agreement or any Note and (ii) signed by the Swing Line Bank in
addition to the Banks required to take such action, amend Section 2.02, increase
the Swing Line Facility or otherwise affect the rights or obligations of the
Swing Line Bank under this Agreement. This Agreement and the Notes and the other
documents referred to herein constitute the entire agreement of the parties with
respect to the subject matter hereof and thereof.
SECTION 8.02. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telecopier, telegraphic, telex or
cable communication) and mailed, telecopied, telegraphed, telexed, cabled or
delivered, if to any Borrower, to it care or the Company at the Company's
address at Young & Rubicam Inc, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇▇▇▇▇▇, telephone no. ▇▇▇-▇▇▇-▇▇▇▇, telecopier number
▇▇▇-▇▇▇-▇▇▇▇; if to any Bank, at the Domestic Lending Office specified beneath
its signature hereto; and if to the Administrative Agent, Citibank, N.A., ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, telephone no.
▇▇▇-▇▇▇-▇▇▇▇, telecopier no. ▇▇▇-▇▇▇-▇▇▇▇; or, as to any Borrower or the
Administrative Agent, at such other address as shall be designated by such party
in a written notice to the other parties and, as to each other party, at such
other address as shall be designated by such party in a written notice to the
Company and the Administrative Agent. All such notices and communications shall,
when mailed, telecopied, telegraphed, telexed or cabled, be effective when
deposited in the mails, telecopied, delivered to the telegraph company,
confirmed by telex answerback or delivered to the cable company, respectively,
except that notices and communications to the Administrative Agent pursuant to
Article II or VII shall not be effective until received by the Administrative
Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Bank or
the Administrative Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs, Expenses and Indemnification.
(a) The Borrowers jointly and severally agree to pay and reimburse promptly
after demand all reasonable costs and expenses of the Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, the reasonable fees
and out-of-pocket expenses of counsel for the Administrative Agent with respect
thereto and with respect to advising the Administrative Agent as to its rights
and responsibilities under this Agreement. The Borrowers further jointly and
severally agree to pay on demand all costs and expenses, if any (including,
without limitation, reasonable counsel
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fees and expenses of the Administrative Agent and each of the Banks), incurred
by the Administrative Agent or any Bank in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this Section 8.04(a).
(b) The Borrowers hereby jointly and severally indemnify the Administrative
Agent, the Syndication Agent, CSI, BARS, each Bank and each of their respective
Affiliates and their respective officers, directors, employees, agents, advisors
and representatives (each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, fees and disbursements of counsel), joint or several, that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or relating to any investigation,
litigation or proceeding or the preparation of any defense with respect thereto
arising out of or in connection with or relating to this Agreement, the Notes or
the transactions contemplated hereby or thereby or any use made or proposed to
be made with the proceeds of the Advances, whether or not such investigation,
litigation or proceeding is brought by a Borrower, any of its shareholders or
creditors, an Indemnified Party or any other Person, or an Indemnified Party is
otherwise a party thereto, and whether or not any of the conditions precedent
set forth in Article III are satisfied or the other transactions contemplated by
this Agreement are consummated, except to the extent such claim, damage, loss,
liability or expense is found by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct,
or from a violation by such Indemnified Party of any law, order, regulation or
agreement to which such Indemnified Party or its properties is subject, or from
a breach of this Agreement.
The Borrowers hereby further agree that no Indemnified Party shall have any
liability (whether direct or indirect, in contract, tort or otherwise) to the
Borrowers for or in connection with or relating to this Agreement, the Notes or
the transactions contemplated hereby or thereby or any use made or proposed to
be made with the proceeds of the Advances, except to the extent such liability
is found by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct, nor any liability
for consequential or punitive damages.
(c) If any payment of principal of, or Conversion of, any LIBO Rate Advance
is made other than on the last day of an Interest Period for such Advance, as a
result of acceleration of the maturity of the Notes pursuant to Section 6.01 or
for any other reason whatsoever, the Borrower of such Advance shall pay to the
Administrative Agent for the account of each Bank any amounts required to
compensate such Bank for any additional losses, costs or expenses which it may
reasonably incur as a result of such payment or Conversion, including, without
limitation, any loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Bank to fund or maintain such Advance. Subject to the next two
sentences hereof, such Borrower shall pay amounts owing to such Bank pursuant to
this Section 8.04(c) within 30 days after receipt from such Bank of a
certificate setting forth in reasonable detail the calculation of the amount
such
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Bank is entitled to claim under this Section 8.04(c) (which certificate shall be
conclusive and binding on the Borrower, absent manifest error). Such Borrower
shall not be liable under this clause for the payment of any amounts incurred or
accrued more than 180 days prior to the date on which notice of the event or
circumstance giving rise to the obligation to make such payment is given to such
Borrower hereunder, except to the extent such amounts were incurred or accrued
prior to such date due solely to the retroactive nature of the relevant
requirement. If such Borrower objects in good faith to any payment demanded
under this clause on or before the date such payment is due, then such Borrower
and the Bank demanding such payment shall enter into discussions to review the
amount due, and such Borrower's obligation to pay such amount to such Bank shall
be deferred for 45 days after the original demand for payment, and if such
Borrower and such Bank do not reach agreements during such 4 day period on the
amount due, such Borrower shall pay to such Bank at the end of such 45-day
period the amount certified by such Bank to be due.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default under Section 6.01(a) or (b) or (b) the
making of the request or the granting of the consent specified by Section 6.01
to authorize the Administrative Agent to declare the Notes due and payable
pursuant to the provisions of Section 6.01, each Bank and each of its Affiliates
is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Bank or such Affiliate to or for the credit or the
account of any Borrower (all such deposits and other indebtedness being herein
called "Obligations") against any and all of the obligations of any Borrower now
or hereafter existing under this Agreement and any Note held by such Bank,
whether or not such Bank shall have made any demand under this Agreement or such
Note and although the Obligations may be unmatured. Each Bank agrees promptly to
notify the Company after any such set-off and application made by such Bank or
such Affiliate, provided that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each Bank and its
Affiliate under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Bank or such
Affiliate may have
SECTION 8.06. Binding Effect. This Agreement shall become effective when it
shall have been executed by each Borrower and the Administrative Agent and when
the Administrative Agent shall have been notified by each Bank that such Bank
has executed it and thereafter shall be binding upon and inure to the benefit of
each Borrower, the Administrative Agent and each Bank and their respective
successors and assigns, except that no Borrower shall have the right to assign
its rights hereunder or any interest herein without the prior written consent of
the Banks.
SECTION 8.07. Assignments and Participations.
(a) Each Bank may, with notice to and the consent of the Administrative
Agent and (unless at the time an Event of Default has occurred and is
continuing) the Company, such
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consents not to be unreasonably withheld (but not otherwise), assign to another
bank, financial institution or other entity (other than the Company or any
Affiliate of the Company), all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) no such consent by the Company or the Administrative
Agent shall be required in the case of any assignment to a Subsidiary of the
assigning Bank or to another Bank, (ii) each such assignment shall be of a
constant, and not a varying, percentage of all rights and obligations of the
assigning Bank under this Agreement, (iii) except in the case of an assignment
of the entire remaining portion of an assigning Bank's rights and obligations
under this Agreement, the amount of the Commitment of the assigning Bank being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than $10,000,000 and shall be an integral multiple of $1,000,000, (iv) the
parties to each such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together wit any Note or Notes subject to such assignment, and (v)
the parties to each such assignment (other than the Borrower) shall deliver to
the Administrative Agent a processing and recordation fee of $3,000. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (x) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Bank hereunder and (y) the Bank assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Bank's rights and obligations under this Agreement, such Bank shall cease to be
a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the Bank
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Bank makes no representation or warranty and assumes
no responsibility with respect to the financial condition of any Borrower or the
performance or observance by any 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 Administrative
Agent, such assigning Bank or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
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assignee appoints and authorizes the Administrative Agent to take such action as
administrative agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required t be performed by
it as a Bank.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an assignee, together with any Note or Notes subject to such
assignment, the Administrative Agent shall, if such Assignment and Acceptance
has been completed (and the Company and the Administrative Agent shall have
consented to the relevant assignment to the extent required pursuant to Section
8.07(a)) and is in substantially the form of Exhibit E hereto, (i) accept such
Assignment and Acceptance, (ii record the information contained therein in the
Register and (iii) give prompt notice thereof to the Company. Within five
Business Days after its receipt of such notice, each Borrower, at its own
expense, shall execute and deliver to the Administrative Agent, in exchange for
the surrendered Note or Notes, a Note to the order of such assignee in an amount
equal to the Commitment assumed by it pursuant to such Assignment and Acceptance
and, if the assigning Bank has retained a Commitment hereunder, a new Note to
the order of the assigning Bank in an amount equal to the Commitment retained by
it hereunder. Such new Note(s) shall be in an aggregate principal amount equal
to the aggregate principal amount of such surrendered Notes. All such Notes
shall be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A hereto.
(d) The Administrative Agent shall maintain at its address referred to in
Section 8.02 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of each of
the Banks and, with respect to Banks, the Commitment of, and principal amount of
the Advances owing to, each such Bank from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for the purposes, absent
manifest error, and the Borrowers, the Administrative Agent and the Banks may
treat each Person whose name is recorded in the Register as a Bank hereunder for
the purposes of this Agreement. The Register shall be available for inspection
by any Borrower or any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(e) Each Bank may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Advances owing to it and the Note or Notes held by it); provided, however,
that (i) such Bank's obligations under this Agreement (including, without
limitation, its Commitment hereunder) shall remain unchanged, (ii) such Bank
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) such Bank shall remain the holder of any such Note
for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent
and the other Banks shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement, and (v)
no participant under any such participation agreement shall have any right to
approve any amendment or waiver of any provision of this Agreement or any Note,
or to consent
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to any departure by any Borrower therefrom, except to the extent that any such
amendment, waiver or consent would (x) reduce the principal of, or interest on,
the Notes or any fee or other amounts payable hereunder, in each case to the
extent the same are subject to such participation, or (y) postpone any date
fixed for the payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent the same are subject
to such participation.
(f) Any Bank may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 8.07, disclose to
the assignee or participant or proposed assignee or participant, any information
relating to the Borrowers or any of their Subsidiaries furnished to such Bank by
or on behalf of any Borrower; provided, that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any confidential information relating to any
Borrower or any such Subsidiary received by it from such Bank on the terms set
forth in Section 8.13.
(g) Notwithstanding any other provision set forth in this Agreement, any
Bank may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and the Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
(h) All amounts payable by the Borrower to any Bank under Sections 2.07,
2.11, 2.14 and 8.04(c) in respect of Advances held by such Bank, and such Bank's
Commitment, shall be determined as if such Bank had not sold or agreed to sell
any participations in such Advances or Commitment and as if such Bank were
funding each of such Advances and Commitments in the same way that it is funding
the portion of such Advances and Commitment in which no participations have been
sold. No assignee or other transferee of any Bank's rights shall be entitled to
receive any greater payment under Section 2.11 than such Bank would have been
entitled to receive with respect to the rights transferred, unless such transfer
is made (i) with the Company's prior written consent, (ii) by reason of the
provisions of said Section 2.11 requiring such Bank to designate a different
Applicable Lending Office as provided in said Section 2.11 or (iii) at a time
when the circumstances giving rise to such greater payment di not exist.
SECTION 8.08. Governing Law; Submission to Jurisdiction. This Agreement and
the Notes shall be governed by, and construed in accordance with, the law of the
State of New York. Each Borrower hereby submits to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
any New York state court sitting in New York City for the purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. Each Borrower agrees that service of all writs, process and
summonses in any such legal proceedings brought in the State of New York may be
made upon the Company at its address specified in Section 8.02 and each Borrower
other than the Company hereby appoints the Company as its agent and true and
lawful attorney-in-fact in its name, place and stead to accept such service of
any and all such writs, process and summonses, and agrees that the failure of
the Company to give any notice of any such service of
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process to such Borrower shall not impair or affect the validity of such service
or of any judgment based thereon. Each such appointment shall be irrevocable to
the fullest extent permitted by applicable law. Each Borrower irrevocably
waives, to the fullest extent permitted by applicable law, any objection that it
may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought i an inconvenient forum.
SECTION 8.09. Severability. In case any provision in this Agreement or in
any Note shall be held to be invalid, illegal or unenforceable, such provision
shall be severable from the rest of this Agreement or such Note, as the case may
be, and the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
SECTION 8.10. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 8.11. Survival. The obligations of the Borrowers under Sections
2.07, 2.11, 2.14 and 8.04, and the obligations of the Banks under Section 7.05,
shall survive the repayment of the Advances and the termination of the
Commitments. In addition, each representation and warranty made, or deemed to be
made by or in connection with any Notice of Borrowing, herein or pursuant hereto
shall survive the making of such representation and warranty as of the date
made, and no Bank shall be deemed to have waived, by reason of making any
Advance, any Default or Event of Default that may arise by reason of such
representation or warranty proving to have been false or misleading,
notwithstanding that such Bank or the Administrative Agent may have had notice
or knowledge or reason to believe that such representation or warranty was false
or misleading at the time such extension of credit was made.
SECTION 8.12. Waiver of Jury Trial. EACH OF THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 8.13. Confidentiality. Each Bank agrees to hold all non-public
information obtained pursuant to the provisions of this Agreement in accordance
with its customary procedure for handling confidential information of this
nature and in accordance with safe and sound banking practices, provided, that
nothing herein shall prevent any Bank from disclosing such information (a) to
any other Bank or to the Administrative Agent (or to CSI or BARS), (b) upon the
order of any court or administrative agency or otherwise to the extent required
by statute, rule, regulation or judicial process, (c) to bank examiners or upon
the request or demand of any other regulatory agency or authority, (d) which had
been publicly disclosed other than as a result of a disclosure by the
Administrative Agent or any Bank prohibited by this
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Agreement, (e) in connection with any litigation to which any one or more of the
Banks or the Administrative Agent is a party, or in connection with the exercise
of any remedy hereunder or under any Note, (f) to such Bank's or Administrative
Agent's legal counsel and independent auditors and accountants and (g) subject
to provisions substantially similar to those contained in this Section, to any
actual or proposed participant or assignee.
SECTION 8.14. European Monetary Union. (a) If, as a result of the
implementation of European monetary union, (i) any European Currency ceases to
be lawful currency of the nation issuing the same and is replaced by a European
common currency (the "Euro"), or (ii) any European Currency and the Euro are at
the same time recognized by any Governmental Authority of the nation issuing
such European Currency as lawful currency of such nation and the Administrative
Agent or the Majority Banks shall so request in a notice delivered to the
Company, then any amount payable hereunder by any party hereto in such European
Currency shall instead be payable in the Euro and the amount so payable shall be
determined by translating the amount payable in such European Currency to the
Euro at the exchange rate recognized by the European Central Bank for the
purpose of implementing European monetary union. Prior to the occurrence of the
event or events described in clause (i) or (ii) of the preceding sentence, each
amount payable hereunder in any European Currency will, except as otherwise
provided herein, continue to be payable only in that Currency.
(b) The Company agrees, at the request of any Bank, to compensate such Bank
for any loss, cost, expense or reduction in return that such Bank shall
reasonably determine shall be incurred or sustained by such Bank as a result of
the implementation of European monetary union and that would not have been
incurred or sustained but for the transactions provided for herein. A
certificate of a Bank setting forth such Bank's determination of the amount or
amounts necessary to compensate such Bank shall be delivered to the Company and
shall be conclusive and binding on the Company absent manifest error. The
Company shall pay such Bank the amount shown as due on any such certificate
within 10 days after receipt thereof. If the Company objects in good faith to
any payment demanded under this clause on or before the date such payment is
due, then the Company and the Bank demanding such payment shall enter into
discussions to review the amount due, and the Company's obligation to pay such
amount to such Bank shall be deferred for 45 days after the original demand for
payment, and if the Company and such Bank do not reach agreement during such
45-day period on the amount due, the Company shall pay to such Bank at the end
of such 45-day period the amount certified by such Bank to be due.
(c) The parties hereto agree, at the time of or at any time following the
implementation of European monetary union, to use reasonable efforts to enter
into an agreement amending this Agreement in order to reflect the implementation
of such monetary union, to permit (if feasible) the Euro to qualify as an
Approved Foreign Currency under the terms and conditions of the definition of
such term and to place the parties hereto in the position with respect to the
settlement of payments of th Euro as they would have been with respect to the
settlement of the Currencies it replaced.
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SECTION 8.15. Additional Subsidiary Borrowers. Subject to the conditions
set forth below, any Subsidiary of the Company may become a party to this
Agreement as a Subsidiary Borrower hereunder. Any such Subsidiary shall become a
party to this Agreement at such time as (a) the Administrative Agent shall have
received (i) a supplement to this Agreement (a "Subsidiary Borrower
Supplement"), in substantially the form of Exhibit F hereto, duly executed by
such Subsidiary, (ii) a Note for each Bank, duly executed by such Subsidiary,
(iii) certified copies of the charter and by-laws (or equivalent documents) of
such Subsidiary and of all corporate authority for such Subsidiary (including,
without limitation, board of director resolutions and evidence of the
incumbency, including specimen signatures, of officers) with respect to the
execution, delivery and performance of this Agreement and the Notes and each
other document to be delivered by such Subsidiary from time to time in
connection herewith and the extensions of credit hereunder, and (iv) a favorable
opinion of counsel (which counsel shall be reasonably acceptable to the
Administrative Agent) for such Subsidiary with regard to the due organization,
power and authority of such Subsidiary to execute and deliver such Subsidiary
Borrower Supplement, and the legality, validity, binding effect and
enforceability thereof and of such Subsidiary's obligations under this Agreement
and said Notes, and the obtaining of any and all foreign exchange and other
governmental approvals required in connection therewith, and (b) the
Administrative Agent shall have accepted such Subsidiary Borrower Supplement
(which the Administrative Agent shall accept upon its receipt of the
documentation required to be delivered pursuant to the foregoing clause (a) in
form and substance satisfactory to the Administrative Agent). Upon such receipt
and acceptance, such Subsidiary shall be a party hereto and shall have the
rights and obligations of a Borrower hereunder and under the Notes, and the
Administrative Agent shall notify the Banks thereof and shall deliver to each
Bank its Note of such Subsidiary.
SECTION 8.16. Waiver of Immunity. To the fullest extent permitted by
applicable law, to the extent that any Foreign Borrower may be or become
entitled to claim for itself or its Properties any immunity on the ground of
sovereignty or the like from suit, court jurisdiction, attachment prior to
judgment, attachment in aid of execution of a judgment or execution of a
judgment, and to the extent that in any jurisdiction there may be attributed
such an immunity (whether or not claimed), such Foreign Borrower hereby
irrevocably agrees not to claim and hereby irrevocably waives such immunity with
respect to its obligations under this Agreement and the Notes.
SECTION 8.17. Judgment Currency. This is an international loan transaction
in which the specification of Dollars or any Foreign Currency, as the case may
be (the "Specified Currency"), and any payment in New York County or the country
of the Specified Currency, as the case may be (the "Specified Place"), is of the
essence, and the Specified Currency shall be the currency of account in all
events relating to Loans denominated in the Specified Currency. The payment
obligations of the Borrowers under this Agreement shall not be discharged by an
amount paid in another currency or in another place, whether pursuant to a
judgment or otherwise, to the extent that the amount so paid on conversion to
the Specified Currency and transfer to the Specified Place under normal banking
procedures does not yield the amount of the Specified Currency at the Specified
Place due hereunder. If for the purpose of obtaining
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judgment in any court it is necessary to convert a sum due hereunder in the
Specified Currency into another currency (the "Second Currency"), the rate of
exchange which shall be applied shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the Specified
Currency with the Second Currency on the Business Day next preceding that on
which such judgment is rendered. The obligation of each Borrower in respect of
any such sum due from it to the Administrative Agent or any Bank hereunder
shall, notwithstanding the rate of exchange actually applied in rendering such
judgment, be discharged only to the extent that on the Business Day following
receipt by the Administrative Agent or such Bank, as the case may be, of any sum
adjudged to be due hereunder in the Second Currency to the Administrative Agent
or such Bank, as the case may be, the Administrative Agent or such Bank, as the
case may be, may in accordance with normal banking procedures purchase and
transfer to the Specified Place the Specified Currency with the amount of the
Second Currency so adjudged to be due; and the Company hereby, as a separate
obligation and notwithstanding any such judgment, agrees to indemnify the
Administrative Agent or such Bank, as the case may be, against, and to pay the
Administrative Agent or such Bank, as the case may be, on demand in the
Specified Currency, any difference between the sum originally due to the
Administrative Agent or such Bank, as the case may be, in the Specified Currency
and the amount of the Specified Currency so purchased and transferred.
SECTION 8.18. Limitation on Foreign Borrower Obligations. Anything in this
Agreement to the contrary notwithstanding, no Foreign Borrower shall be deemed
to guarantee the obligations of any other Borrower hereunder and no Foreign
Borrower shall be liable for the obligations, covenants, representations or
warranties of any other Borrower hereunder; provided, that nothing in this
Section 8.18 shall be deemed to limit the rights and remedies of the
Administrative Agent and the Banks under this Agreement upon the occurrence of
any Default, whether such Default results from any action or inaction on the
part of such Foreign Borrower, any other Borrower or any other Person.
SECTION 8.19. Affiliates.
(a) The parties hereto hereby acknowledge and agree that any Affiliate of a
Bank that makes a Revolving Credit Advance to any Foreign Borrower as
contemplated by Section 2.01(a)(ii) hereof shall have made such Revolving Credit
Advance in reliance upon, and shall be entitled to the benefits of, this
Agreement and shall be entitled to enforce its rights hereunder in respect of
such Revolving Credit Advance as fully as if it were a party hereto.
(b) At the request of any Bank, any Affiliate of such Bank that makes (or
proposes to make) a Revolving Credit Advance to any Foreign Borrower as
contemplated by Section 2.01(a)(ii) hereof may become a signatory hereto by
executing and delivering to the Administrative Agent a supplement to this
Agreement satisfactory in form and substance to the Administrative Agent if
being a signatory hereto will be advantageous to such Affiliate under applicable
laws, provided that no such Affiliate shall have a Commitment hereunder.
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ARTICLE IX
GUARANTEE
SECTION 9.01. The Guarantee. The Company hereby guarantees to each Bank and
the Administrative Agent and their respective successors and assigns the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest on the Advances made by each Bank to
each Borrower other than the Company (the "Guaranteed Borrowers") and all other
amounts from time to time owing to each Bank or the Administrative Agent by each
Guaranteed Borrower under this Agreement, in each case strictly in accordance
with the terms thereof (such obligations being herein collectively called the
"Guaranteed Obligations"). The Company hereby further agrees that if any
Guaranteed Borrower shall fail to pay in full when due (whether at stated
maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the
Company will promptly pay the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the
Guaranteed Obligations, the same will be promptly paid in full when due (whether
at extended maturity, by acceleration or otherwise) in accordance with the terms
of such extension or renewal.
SECTION 9.02. Obligations Unconditional. The obligations of the Company
under Section 9.01 are, to the fullest extent permitted by applicable law,
absolute and unconditional irrespective of the authorization, legality value,
genuineness, validity, regularity or enforceability of any Subsidiary Borrower
Supplement or any of the obligations of any Guaranteed Borrower under this
Agreement or any other agreement or instrument referred to herein or therein, or
any substitution, release or exchange of any other guarantee of or security for
any of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 9.02 that the obligations of the
Company hereunder shall be absolute and unconditional under any and all
circumstances. Without limiting the generality of the foregoing, it is agree
that the occurrence of any one or more of the following shall not alter or
impair the liability of the Company hereunder which shall remain absolute and
unconditional as described above:
(a) at any time or time to time, without notice to the Company, the
time for any performance of or compliance with any of the Guaranteed
Obligations shall be extended, or such performance or compliance shall be
waived;
(b) any of the acts mentioned in any of the provisions of this
Agreement or any other agreement or instrument referred to herein or
therein shall be done or omitted;
(c) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this Agreement
or any other agreement or instrument referred to herein or therein shall be
waived or any other guarantee of any of the Guaranteed
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Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with; or
(d) any lien or security interest granted to, or in favor of, the
Administrative Agent or any Bank or Banks as security for any of the
Guaranteed Obligations shall fail to be perfected.
The Company hereby expressly waives diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Bank exhaust any right, power or remedy or proceed against any
Guaranteed Borrower under this Agreement or any other agreement or instrument
referred to herein or therein, or against any other Person under any other
guarantee of, or security for, any of the Guaranteed Obligations.
SECTION 9.03. Reinstatement. The obligations of the Company under this
Article IX shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any Guaranteed Borrower in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise and the Company agrees that it will
indemnify the Administrative Agent and each Bank on demand for all reasonable
costs and expenses (including, without limitation, fees of counsel) incurred by
the Administrative Agent or such Bank in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
SECTION 9.04. Subrogation. The Company hereby agrees that until the payment
and satisfaction in full of all Guaranteed Obligations and the expiration and
termination of the Commitments of the Banks under this Agreement it shall not
exercise any right or remedy arising by reason of any performance by it of its
guarantee in Section 9.01, whether by subrogation or otherwise, against any
Guaranteed Borrower or any other guarantor of any of the Guaranteed Obligations
or any security for any of the Guaranteed Obligations.
SECTION 9.05. Remedies. The Company agrees that, as between the Company and
the Banks, the obligations of the Guaranteed Borrowers under this Agreement may
be declared to be forthwith due and payable as provided in Section 6.01 (and
shall be deemed to have become automatically due and payable in the
circumstances provided in said Section 6.01) for purposes of Section 9.01
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against any Guaranteed Borrower and that, in the event of such declaration (or
such obligations being deemed to have become automatically due and payable),
such obligations (whether or not due and payable by such Guaranteed Borrower)
shall forthwith become due and payable by the Company for purposes of Section
9.01.
Credit Agreement
----------------
-75-
SECTION 9.06. Continuing Guarantee. The guarantee in this Article IX is a
continuing guarantee of payment (and not of collection), and shall apply to all
Guaranteed Obligations whenever arising.
SECTION 9.07. Instrument for the Payment of Money. The Company hereby
acknowledges that the guarantee in this Article IX constitutes an instrument for
the payment of money, and consents and agrees that any Bank or the
Administrative Agent, at its sole option, in the event of a dispute by the
Company in the payment of any moneys due hereunder, shall have the right to
bring motion-action under New York CPLR Section 3213.
Credit Agreement
----------------
-76-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
YOUNG & RUBICAM INC.
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title: Senior Vice President
Tax & Treasury
SUBSIDIARY BORROWERS
--------------------
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ HOLDING GMBH
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Chief Financial Officer
YOUNG & RUBICAM HOLDINGS
(U.K.) LIMITED
By /s/ Beat ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Director
CMG AG, ZUG
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Chairman of the Board
ADMINISTRATIVE AGENT
--------------------------------------
CITIBANK, N.A., as Administrative
Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------------------
Title: Attorney-in-Fact
Credit Agreement
----------------
-77-
Commitment Banks
---------- -----
$47,000,000 CITIBANK, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
----------------------------
Title: Attorney-in-Fact
Domestic Lending Office:
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
LIBO Lending Office:
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
-▇▇-
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ NATIONAL TRUST
---------- AND SAVINGS ASSOCIATION
$47,000,000
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Title: Vice President
Domestic Lending Office:
Bank of America National Trust
and Savings Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LIBO Lending Office:
Bank of America National Trust
and Savings Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices (other than Notices of
Borrowings, Continuations or Conversions):
Bank of America National Trust
and Savings Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 212-503-7173
Address for Notices of Borrowings,
Continuations or Conversions):
Bank of America National Trust
and Savings Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
-▇▇-
▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
----------
$32,000,000
By: /s/ Georgia Pan-Kita
-----------------------
Title: Vice President
Domestic Lending Office:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LIBO Lending Office:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ Corporate Division
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Georgia Pan-Kita
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
-▇▇-
▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
----------
$32,000,000
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Title: Senior Relationship Manager
Domestic Lending Office:
The Bank of Nova Scotia, New York Agency
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
LIBO Lending Office:
The Bank of Nova Scotia, New York Agency
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
-81-
Commitment CREDIT LYONNAIS NEW YORK BRANCH
----------
$32,000,000
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: First Vice President - Manager
Domestic Lending Office:
Credit Lyonnais New York Branch
1301 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LIBO Lending Office:
Credit Lyonnais New York Branch
1301 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Credit Notices:
Credit Lyonnais New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
-82-
Commitment FLEET BANK, N.A.
----------
$32,000,000
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------
Title: Vice President
Domestic Lending Office:
Fleet Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LIBO Lending Office:
Fleet Bank, N.A.
1185 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Fleet Bank, N.A.
1185 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
-83-
Commitment ING BANK N.V.
----------
$32,000,000
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Title: General Manager
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
-------------------------
Title: Account Manager
Domestic Lending Office:
ING Bank N.V.
▇▇, ▇▇. ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
LIBO Lending Office:
ING Bank N.V.
▇▇, ▇▇. ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
Address for Notices:
ING Bank N.V.
▇▇, ▇▇. ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇-▇▇▇-▇▇▇▇
Facsimile: 353-1-662-1916
Credit Agreement
----------------
-▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ NATIONAL ASSOCIATION
----------
$32,000,000
By: ▇▇▇▇▇ ▇. ▇▇▇
--------------------------------------
Title: Vice President
Domestic Lending Office:
KeyBank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇-▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
LIBO Lending Office:
KeyBank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇-▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Address for Administrative Notices:
KeyBank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇-▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Address for Credit Notices:
KeyBank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇-▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
-85
Commitment WACHOVIA BANK, N.A.
----------
$32,000,000
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Title: Senior Vice President
Domestic Lending Office:
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
LIBO Lending Office:
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Credit Notices:
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Address for Administrative and Funding Notices
and Notices Relating to Repayment:
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
-86-
Commitment BANK OF TOKYO-MITSUBISHI TRUST
---------- COMPANY
$25,000,000
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------
Title: Vice President
Domestic Lending Office:
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
LIBO Lending Office:
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Address for Credit Notices:
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇/5636
Credit Agreement
----------------
-87-
Commitment CREDIT AGRICOLE INDOSUEZ
----------
$20,000,000
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Title: Vice President - TL
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Title: First Vice President
Domestic Lending Office:
Credit Agricole Indosuez
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LIBO Lending Office:
Credit Agricole Indosuez
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Credit Matters:
Credit Agricole Indosuez
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Address for Funding Notices:
Credit Agricole Indosuez
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
-88-
Commitment NATIONAL WESTMINSTER BANK PLC
----------
$20,000,000
Nassau Branch
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------
Title: Corporate Manager
New York Branch
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------
Title: Corporate Manager
Domestic Lending Office:
NatWest Markets - Commercial Loans
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LIBO Lending Office:
NatWest Markets - Commercial Loans
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
NatWest Markets - Commercial Loans
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ Wearing/▇▇▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇/4195
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
-89-
Commitment THE FIRST NATIONAL BANK OF CHICAGO
----------
$17,000,000
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Assistant Vice President
Domestic Lending Office:
The First National Bank of Chicago
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LIBO Lending Office:
The First National Bank of Chicago
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The First National Bank of Chicago
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
SCHEDULE I
ERISA Matters
-------------
None
Credit Agreement
----------------
SCHEDULE II
Existing Liens
--------------
None
Schedule II
-----------