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Exhibit 10.29
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U.S. $400,000,000
CREDIT AGREEMENT
Dated as of May [__], 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 XXXXXXXXX XXXXXXXX
as Co-Arranger
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TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS..........................................................................1
SECTION 1.02. COMPUTATION OF TIME PERIODS...................................................................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.................................................................18
SECTION 2.02. SWING LINE ADVANCES...........................................................................21
SECTION 2.03. FEES..........................................................................................24
SECTION 2.04. CHANGES IN COMMITMENTS........................................................................24
SECTION 2.05. REPAYMENT OF ADVANCES.........................................................................26
SECTION 2.06. INTEREST......................................................................................26
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................................................30
SECTION 2.11. INCREASED COSTS...............................................................................31
SECTION 2.12. ILLEGALITY....................................................................................32
SECTION 2.13. PAYMENTS AND COMPUTATIONS.....................................................................33
SECTION 2.14. TAXES.........................................................................................34
SECTION 2.15. PRO RATA TREATMENT............................................................................36
SECTION 2.16. SHARING OF PAYMENTS, ETC......................................................................37
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. CONDITIONS PRECEDENT TO INITIAL BORROWING.....................................................38
SECTION 3.02. CONDITIONS PRECEDENT TO EACH BORROWING........................................................39
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES................................................................40
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. AFFIRMATIVE COVENANTS.........................................................................46
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SECTION 5.02. NEGATIVE COVENANTS............................................................................51
SECTION 5.03 FINANCIAL COVENANTS...........................................................................55
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT.............................................................................56
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. AUTHORIZATION AND ACTION......................................................................58
SECTION 7.02. ADMINISTRATIVE AGENT'S RELIANCE, ETC..........................................................59
SECTION 7.03. CITIBANK AND AFFILIATES.......................................................................59
SECTION 7.04. BANK CREDIT DECISION..........................................................................60
SECTION 7.05. INDEMNIFICATION...............................................................................60
SECTION 7.06. SUCCESSOR ADMINISTRATIVE AGENT................................................................60
SECTION 7.07. SYNDICATION AGENT.............................................................................61
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. AMENDMENTS, ETC...............................................................................61
SECTION 8.02. NOTICES, ETC..................................................................................62
SECTION 8.03. NO WAIVER; REMEDIES...........................................................................62
SECTION 8.04. COSTS, EXPENSES AND INDEMNIFICATION...........................................................62
SECTION 8.05. RIGHT OF SET-OFF..............................................................................64
SECTION 8.06. BINDING EFFECT................................................................................64
SECTION 8.07. ASSIGNMENTS AND PARTICIPATIONS................................................................64
SECTION 8.08. GOVERNING LAW; SUBMISSION TO JURISDICTION.....................................................67
SECTION 8.09. SEVERABILITY..................................................................................68
SECTION 8.10. EXECUTION IN COUNTERPARTS.....................................................................68
SECTION 8.11. SURVIVAL......................................................................................68
SECTION 8.12. WAIVER OF JURY TRIAL..........................................................................68
SECTION 8.13. CONFIDENTIALITY...............................................................................68
SECTION 8.14. EUROPEAN MONETARY UNION.......................................................................69
SECTION 8.15. ADDITIONAL SUBSIDIARY BORROWERS...............................................................70
SECTION 8.16. WAIVER OF IMMUNITY............................................................................70
SECTION 8.17. JUDGMENT CURRENCY.............................................................................70
ARTICLE IX
GUARANTEE
SECTION 9.01. THE GUARANTEE.................................................................................71
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SECTION 9.02 OBLIGATIONS UNCONDITIONAL......................................................................72
SECTION 9.03 REINSTATEMENT..................................................................................72
SECTION 9.04 SUBROGATION....................................................................................73
SECTION 9.05 REMEDIES.......................................................................................73
SECTION 9.06 CONTINUING GUARANTEE...........................................................................73
SECTION 9.07 INSTRUMENT FOR THE PAYMENT OF MONEY............................................................73
SCHEDULES
Schedule I - ERISA Matters
Schedule II - Existing Liens
EXHIBITS
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
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CREDIT AGREEMENT dated as of May [__], 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.
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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 is dealt
with in the London interbank deposit market, and is freely transferable
and convertible into Dollars in the London foreign exchange market and
available to all of the Banks.
"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 Xxxxx 0 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, such Bank's Domestic Lending
Office in the case of a Base Rate Advance and such Bank's LIBO Lending
Office 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:
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Base Rate LIBO
Pricing Level Advances Rate Advances
Period (% p.a.) (% p.a.)
------ -------- --------
Pricing Xxxxx 0 Period 0.0000% 0.2750%
Pricing Xxxxx 0 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).
"BARS" means BancAmerica Xxxxxxxxx Xxxxxxxx.
"Base Rate" means, for any period, a fluctuating interest rate
per annum in effect from time to time which rate per annum shall at all
times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank
in New York, New York, from time to time, as
Citibank's base rate;
(b) 0.50% per annum above the Federal Funds Rate; and
(c) the sum (adjusted to the nearest 1/16 of one percent
or, if there is no nearest 1/16 of one percent, to
the next higher 1/16 of one percent) of (i) 0.50% per
annum plus (ii) the rate obtained by dividing (x) the
latest three-week moving average of secondary market
morning offering rates in the United States for
three-month certificates of deposit of major United
States money center banks, such three-week moving
average (adjusted to
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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-month
Dollar non-personal time deposits in the United
States plus (iii) the average during such three-week
period of the annual assessment rates estimated by
Citibank for determining the then current annual
assessment rate payable by Citibank to the Federal
Deposit Insurance Corporation (or any successor) for
insuring Dollar deposits of Citibank in the United
States.
Each change in any interest rate provided for herein based upon the
Base Rate resulting from a change in the Base Rate shall take effect at
the time of such change in the Base Rate.
"Base Rate Advance" means, at any time, an Advance which bears
interest at the Base Rate.
"Borrowing" means a 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.
"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
Credit Agreement
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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 Xxxxx'x 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 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
Credit Agreement
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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 [__], 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".
"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)
Credit Agreement
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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 not
Wholly-Owned Subsidiaries of the Company, but which the Company reports
on a consolidated basis in accordance with GAAP, (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 in New York City (whether or not
occupying the New York Real Property) in connection with, or in
anticipation of, such sale, or (ii) the relocation or consolidation of
individuals and offices located in New York City, currently occupying
more than 300,000 square feet, including in each case all expenses of
renovating office space, and (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 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 equal 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
Credit Agreement
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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 rent
and deferred employee compensation incurred in the ordinary course of
business, and, in each case, not overdue).
Credit Agreement
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"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 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 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 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,
Credit Agreement
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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.
"GAAP" has the meaning specified in Section 1.03.
Credit Agreement
15
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"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.
"HFCP Investors" means, collectively, Xxxxxxx & Xxxxxxxx
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 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
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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 specified as its "LIBO Lending Office" below its
signature hereto or in the Assignment and Acceptance pursuant to which
it became a Bank (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Bank 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
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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 then aggregate unpaid principal amount of the Advances held by
Banks, or, if no such principal amount is then outstanding, Banks
having more than 50% of the Commitments.
"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.
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"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 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 000 Xxxxxxx Xxxxxx, Xxx Xxxx Xxxx.
"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.
Credit Agreement
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"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).
"Pricing Level Period" means a Pricing Level 1 Period, a
Pricing Level 2 Period or a Pricing Xxxxx 0 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.
Credit Agreement
20
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"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. Section 2615.
"Reorganization" means, with respect to any Multiemployer
Plan, the condition that such plan is in reorganization within the
meaning of Section 4241 of ERISA.
"Requirement of Law" means, as to any Person, the certificate
of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its Property or to which such Person or any of its Property is
subject.
"Responsible Officer" means, as to any Person, the chief
executive officer, the president, any member of the management
committee of such Person or any other officer of such Person designated
as such in writing by any of the foregoing officers of such Person or,
with respect to financial matters, the chief financial officer, the
chief accounting officer or the treasurer of such Person.
"Revolving Credit Advance" means an advance by a Bank to a
Borrower as part of a Revolving Credit Borrowing.
Credit Agreement
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"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.
"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.
Credit Agreement
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"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.
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 into any Assignment and Acceptance, set forth for such
Bank in the Register, as such amount may
Credit Agreement
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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) 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.
(iii) 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
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.
(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
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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) on 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 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
Credit Agreement
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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
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 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.
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(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) 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) 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 sum of (i) the portion of the
outstanding principal amount of such Swing Line Advances to be purchased by such
Bank plus (ii) interest accrued and unpaid to and as of such date on such
portion of the outstanding principal amount of such Swing Line Advances. Each
Bank's obligations to make such
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payments to 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 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.
Credit Agreement
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SECTION 2.03. Fees.
(a) Facility Fee. The Borrowers 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 Bank 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 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.
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(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) Notwithstanding the foregoing, any increase in the aggregate
Commitments hereunder pursuant to this Section 2.04(a) shall not be
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
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(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.
(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
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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:
(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
Credit Agreement
32
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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).
(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
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33
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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 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 the 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 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 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
Credit Agreement
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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 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.
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
Credit Agreement
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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 the 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 or any change by way of imposition or
increase of reserve requirements included in the LIBO Rate Reserve Percentage)
in or in the interpretation of (to the extent any such introduction or change
occurs after the date hereof) any law or regulation or (ii) the compliance with
any guideline or request of any central bank or other Governmental Authority
adopted or made after the date hereof (whether or not having the force 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 increased 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 a designation would avoid the need for, or reduce the amount of, such
increased cost and would not, in the reasonable judgment of such Bank, be
otherwise disadvantageous to such Bank.
(b) (i) If any Bank determines that compliance with any law or
regulation enacted or introduced after the date hereof or any guideline
or request of any central bank or other Governmental Authority adopted
or made after the date hereof (whether or not having the force of law)
affects or would affect the amount of capital required or expected to
be maintained by such Bank or any corporation controlling such Bank
deemed by such Bank to be material and that the amount of such capital
is increased by or based upon the existence of such Bank's Commitment
and other commitments of this type, or the Advances, then, within 30
days after delivery by such Bank to the Company (with a copy
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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 as specified by such Bank, the amount specified
in such certificate (which certificate shall be conclusive and binding
for all purposes, absent manifest error); provided, that, before making
any such demand, each Bank agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to
designate a different Applicable Lending Office if the making of such a
designation would avoid the need for, or reduce the amount of, such
increased cost and would not, in the reasonable judgment of such Bank,
be otherwise disadvantageous to such Bank.
(ii) For purposes hereof, the "Additional Amounts" that may be
requested by any Bank under this Section 2.11(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 achieved but for
the enactment or introduction of such law or regulation or the adoption
or making of such guideline or request).
Credit Agreement
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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.
(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
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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 and of
Facility Fees 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 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 such 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.
(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
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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 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 income, and
franchise taxes imposed on it in lieu of income taxes, by the
jurisdiction under the laws of which such Bank or the Administrative
Agent (as the case may be) is organized or any political subdivision
thereof or by any other jurisdiction as a result of a present or former
connection between such Bank or the Administrative Agent and such
jurisdiction and, in the case of each Bank, taxes imposed on its
income, and franchise taxes imposed on it in lieu of 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, delivery or registration of, or
otherwise with respect to, this Agreement or the Notes (hereinafter referred to
as "Other Taxes").
(c) 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
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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. If no Taxes are payable in respect of any payment by
a Borrower hereunder or under the Notes, such Borrower will furnish to the
Administrative Agent, at such address, a certificate from each appropriate
taxing authority, or an opinion in form and substance satisfactory to the
Administrative Agent of counsel acceptable to the Administrative Agent, in
either case stating that such payment is exempt from or not subject to Taxes.
(e) Each Bank that is entitled to any exemption from or
reduction of withholding tax with respect to payments hereunder and under the
Notes payable to such Bank shall, on or prior to the date of its execution and
delivery of this Agreement (in the case of each Bank that is a signatory hereto)
and on the date of the Assignment and Acceptance pursuant to which it becomes a
Bank (in the case of each other Bank that becomes a party hereto pursuant to
Section 2.04(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 or 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. If, under applicable law, at the time a Bank first
becomes a party to this Agreement the Borrower would be required to deduct any
Taxes on any payments hereunder or under any Note payable to such Bank,
withholding tax at such rate and liabilities with respect thereto shall be
considered excluded from "Taxes" as defined in Section 2.14(a) that such
Borrower shall be liable in respect of under this Section 2.14.
(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) above), such Bank shall not be entitled to
indemnification by a Borrower under Section 2.14(a) with respect to Taxes
imposed by the jurisdiction in which such Borrower is located; 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
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amounts that may thereafter accrue and would not, in the reasonable judgment of
such Bank, be otherwise disadvantageous to such Bank.
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;
(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
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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.
The obligation of each Bank to make an Advance on the occasion of the initial
Borrowing is subject to the condition precedent that the Administrative Agent
shall have received, on or prior to the day of the initial Borrowing but no
later than May 30, 1998, 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 each Borrower payable to the order of the
respective Banks.
(b) Certified copies of the charter and by-laws (or equivalent
documents) of each Borrower and of all corporate authority for each
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 Borrower from time to time in connection herewith and the
extensions of credit hereunder (and the Administrative Agent and each
Bank may conclusively rely on such certificate until it receives notice
in writing from such Borrower to the contrary).
(c) A favorable opinion of Xxxxxxxxx X. Xxxxxxxx, Esq.,
General Counsel for the Company, substantially in the form of Exhibit
C-1, and a favorable opinion of Wachtell, Lipton, Xxxxx & Xxxx, special
counsel for the Company, substantially in the form of Exhibit C-2, and
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 each Subsidiary
Borrower that is a party to this Agreement on the Closing Date.
(d) A favorable opinion of Milbank, Tweed, Xxxxxx & XxXxxx,
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
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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).
(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 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 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.
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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 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, in the aggregate,
reasonably be expected to have a Material Adverse Effect, and (iv)
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is in compliance with all Requirements of Law except to the extent that
the failure to comply therewith could not, 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 delivered 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 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
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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 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, in the aggregate,
could not 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, 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 such tax, fee or other
charge (other than, such Liens, taxes, fees and other charges as could
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect).
(l) Margin Regulations. No part of the proceeds of any
Advances will be used for "purchasing" or "carrying" any "margin stock"
within the respective meanings of each of the quoted terms under
Regulation U of the Board of Governors of the Federal Reserve System as
now and from time to time hereafter in effect.
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(m) ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or
Section 302 of ERISA) has occurred during the five-year period prior to
the date on which this representation is made or deemed made with
respect to any Plan or is reasonably expected to occur, and each Plan
has complied in all material respects with the applicable provisions of
ERISA and the Code. No termination of a Single Employer Plan has
occurred, no Lien in favor of the PBGC or a Plan has arisen, during
such five-year period, and neither the borrower nor any Commonly
Controlled Entity has received any notice relating to an intent to
terminate any such Single Employer Plan or impose any such Lien. Except
as set forth on Schedule I, the present value of all accrued benefits
under each Single Employer Plan (based on those assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did
not, as of the last annual valuation date prior to the date on which
this representation is made or deemed made, exceed the fair market
value of the assets of such Plan allocable to such accrued benefits.
Neither 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. Each Borrower
is not an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act
of 1940, as amended. Such Borrower is not 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.
(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
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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 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.
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(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 or liability referred to in this paragraph, or any
aggregation thereof, could not reasonably be expected to have
a Material Adverse Effect.
(q) Accuracy of Information. No statement or information
contained in this Agreement, or any other document, certificate or
written statement furnished to the Administrative Agent or the Banks or
any of them, by or on behalf of 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, 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 will result from a Year 2000 Problem. For
purposes of this paragraph (s), "Year 2000 Problem" means any
significant risk that computer hardware
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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 Foreign Borrower
hereunder and under the Notes are and will at all times be
unconditional, senior unsecured and unsubordinated general obligations
of such Foreign 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 Foreign 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 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
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the covenants and agreements contained 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 in 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;
(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,
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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 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
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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, 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 any of its books and records at any reasonable time
and as often as may reasonably be desired and to discuss the business,
operations, Property and financial and other condition of 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 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;
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(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, in the aggregate, be reasonably expected to have
a Material Adverse Effect; and
(ii) conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and
other actions required under Environmental Laws, except to the
extent that the failure to do so could not, individually or in
the aggregate, reasonably be expected to have a Material
Adverse Effect, and promptly comply with all lawful orders and
directives of all Governmental Authorities regarding
Environmental Laws, except to the extent that the same are
being contested in good faith by appropriate proceedings and
the pendency of such proceedings could not be reasonably
expected to have a Material Adverse Effect.
(i) Governmental Authorizations. Each Foreign 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
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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 Foreign Borrower will promptly take all
actions as may be necessary to ensure that the payment obligations of
such Foreign Borrower under this Agreement and the Notes will at all
times constitute unconditional, senior unsecured and unsubordinated
general obligations of such Foreign Borrower ranking at least pari
passu with all other present and future unsecured and unsubordinated
Debt of such Foreign 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% of
the original purchase price of such Property;
(vii) Liens on the Property of a corporation that
becomes a Subsidiary after the date hereof, provided that such
Liens existed at the time such corporation became a Subsidiary
and were not created in anticipation thereof;
(viii) any Lien renewing, extending, refunding or
refinancing any Lien permitted by clause (vi) or (vii) above
or (xii) below, provided that the principal amount of Debt
secured by such Lien is not increased, and such Lien is not
extended to other Property;
(ix) Liens on Property of a Subsidiary to secure
obligations of such Subsidiary to a Borrower or another
Subsidiary;
(x) judgment Liens, so long as the finality of such
judgment is being actively contested in good faith by
appropriate proceedings and execution thereon is stayed;
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(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 (i) both immediately prior to such
merger, consolidation or amalgamation and after giving effect
thereto, no Default shall exist and (y) in the case of a
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;
(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;
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(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.
(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 (i) both
immediately prior to such Acquisition and after giving effect
thereto, no Default shall exist, (ii) 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 (iii) such Acquisition is not a
Hostile Acquisition;
(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;
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(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.
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.
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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
(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), beyond the period of grace (not to exceed 30 days), if any,
provided in the instrument or agreement under which such Debt was
created; or (ii) default in the observance or performance of any other
agreement or condition relating to any such Debt 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 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 to become due prior to its stated
maturity; provided, however, that no Default shall exist under this
paragraph unless the aggregate amount of Debt at any time in respect of
which any default or other event or condition referred to in this
paragraph shall
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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 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
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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 due 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, 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
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matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Notes), the Administrative Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Majority Banks,
and such instructions shall be binding upon all Banks and all holders of Notes;
provided, however, that the Administrative Agent shall not be required to take
any action which exposes the Administrative Agent to personal liability or which
is contrary to this Agreement or applicable law. The Administrative Agent agrees
to give to each Bank prompt notice of each notice given to it by 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, 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
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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 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.
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SECTION 7.05. Indemnification. The Banks agree to indemnify
the Administrative Agent (to the extent not reimbursed by the Borrowers),
ratably according to the respective principal amounts of the Notes then held by
them (or if no Notes are at the time outstanding, ratably according to the
respective amounts of their Commitments), 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 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 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. Bank of America National
Trust and Savings Association shall not have any rights (except to the extent
expressly provided herein) or obligations hereunder in its capacity as
Syndication Agent.
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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, or (g) modify
the definition of the term "Approved Foreign Currency"; 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, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxx Xxxxxx, telephone no. 000-000-0000, telecopier
number 000-000-0000; if to any Bank, at the Domestic Lending Office specified
beneath its signature hereto; and if to the Administrative Agent, Citibank,
N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxx,
telephone no. 000-000-0000, telecopier no. 000-000-0000; 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
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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 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.
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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 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
45-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
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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 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) the
amount of the Commitment of the assigning Bank being assigned pursuant to each
such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000 and shall
be an integral multiple of $1,000,000, (iv) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any Note
or Notes subject to such assignment, and (v) the parties to each such assignment
(other than the Borrower) shall deliver to the Administrative Agent a processing
and recordation fee of $3,000. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Bank
hereunder and (y) the Bank assignor thereunder shall, to the extent that rights
and obligations hereunder have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto).
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(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 assignee appoints and authorizes the
Administrative Agent to take such action as administrative agent on its behalf
and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vi) such assignee agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Bank.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Bank and an assignee, together with any Note or Notes subject to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed (and the 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
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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 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
Credit Agreement
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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 did 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 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 in 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.
Credit Agreement
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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 Citicorp Securities,
Inc. or BancAmerica Xxxxxxxxx Xxxxxxxx), (b) upon the order of any court or
administrative agency or otherwise to the extent required by statute, rule,
regulation or judicial process, (c) to bank examiners or upon the request or
demand of any other regulatory agency or authority, (d) which had been publicly
disclosed other than as a result of a disclosure by the Administrative Agent or
any Bank prohibited by this Agreement, (e) in connection with any litigation to
which any one or more of the Banks or the Administrative Agent is a party, or in
connection with the exercise of any remedy hereunder or under any Note, (f) to
such Bank's or Administrative Agent's legal counsel and independent auditors and
accountants and (g) subject to provisions substantially similar to those
contained in this Section, to any actual or proposed participant or assignee.
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
Credit Agreement
74
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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 the Euro as they would have been with
respect to the settlement of the Currencies it replaced.
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 as 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
Credit Agreement
75
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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 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
Credit Agreement
76
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or such Bank, as the case may be, in the Specified Currency and the amount of
the Specified Currency so purchased and transferred.
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 agreed 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 from 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;
Credit Agreement
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(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
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
Credit Agreement
78
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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.
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
79
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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__________________________
Title:
[NAME OF GERMAN SUBSIDIARY BORROWER]
By__________________________
Title:
[NAME OF U.K. SUBSIDIARY BORROWER]
By__________________________
Title:
[NAME OF SWISS SUBSIDIARY BORROWER]
By__________________________
Title:
CITIBANK, N.A., as Administrative
Agent
By__________________________
Title:
Credit Agreement
80
- 76 -
Commitment Banks
$ CITIBANK, N.A.
By____________________________
Title:
Domestic Lending Office:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
LIBO Lending Office:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Address for Notices:
Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Credit Agreement
00
- 00 -
Xxxxxxxxxx XXXX XX XXXXXXX NATIONAL TRUST
$ AND SAVINGS ASSOCIATION
By:____________________________
Title:
Domestic Lending Office:
LIBO Lending Office:
Address for Notices:
Attention:
Telephone:
Facsimile:
Credit Agreement
00
- 00 -
Xxxxxxxxxx XXX XXXX XX XXX XXXX
$
By:____________________________
Title:
Domestic Lending Office:
LIBO Lending Office:
Address for Notices:
Attention:
Telephone:
Facsimile:
Credit Agreement
00
- 00 -
Xxxxxxxxxx XXX XXXX XX XXXX XXXXXX
$
By:____________________________
Title:
Domestic Lending Office:
LIBO Lending Office:
Address for Notices:
Attention:
Telephone:
Facsimile:
Credit Agreement
84
- 80 -
Commitment CREDIT AGRICOLE
$
By:____________________________
Title:
Domestic Lending Office:
LIBO Lending Office:
Address for Notices:
Attention:
Telephone:
Facsimile:
Credit Agreement
85
- 81 -
Commitment CREDIT LYONNAIS
$
By:____________________________
Title:
Domestic Lending Office:
LIBO Lending Office:
Address for Notices:
Attention:
Telephone:
Facsimile:
Credit Agreement
86
Commitment FLEET NATIONAL BANK
$
By:____________________________
Title:
Domestic Lending Office:
LIBO Lending Office:
Address for Notices:
Attention:
Telephone:
Facsimile:
Credit Agreement
- 82 -
87
- 83 -
Commitment ING BANK N.V.
$
By:____________________________
Title:
Domestic Lending Office:
LIBO Lending Office:
Address for Notices:
Attention:
Telephone:
Facsimile:
Credit Agreement
00
- 00 -
Xxxxxxxxxx XXXXXXX NATIONAL ASSOCIATION
$
By:____________________________
Title:
Domestic Lending Office:
LIBO Lending Office:
Address for Notices:
Attention:
Telephone:
Facsimile:
Credit Agreement
89
- 85 -
Commitment THE FIRST NATIONAL BANK OF CHICAGO
$
By:____________________________
Title:
Domestic Lending Office:
LIBO Lending Office:
Address for Notices:
Attention:
Telephone:
Facsimile:
Credit Agreement
90
- 86 -
Commitment WACHOVIA BANK, N.A.
$
By:____________________________
Title:
Domestic Lending Office:
LIBO Lending Office:
Address for Notices:
Attention:
Telephone:
Facsimile:
Credit Agreement
91
SCHEDULE I
ERISA Matters
None
92
SCHEDULE II
Existing Liens
None
93
EXHIBIT A
FORM OF NOTE
$_________________ Dated: _________ __, _____
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
_________________ organized under the laws of _________________ (the
"Borrower"), HEREBY PROMISES TO PAY to the order of _________________ (the
"Bank") for the account of its Applicable Lending Office (as defined in the
Credit Agreement referred to below) on the Termination Date (as so defined) the
principal sum of $[amount of the Bank's Commitment in figures] or, if less the
aggregate principal amount of the Revolving Credit Advances (as defined below)
made by the Bank to the Borrower pursuant to the Credit Agreement then
outstanding; provided, that to the extent that any Revolving Credit Advance
evidenced hereby is denominated in an Approved Foreign Currency as defined in
the Credit Agreement, the principal of and interest on such Revolving Credit
Advance shall be payable in such Approved Foreign Currency.
The Borrower promises to pay interest on the unpaid principal
amount of each Revolving Credit Advance from the date of such Revolving Credit
Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal and interest on each Revolving Credit Advance
are payable in the Currency in which such Revolving Credit Advance is
denominated to the Administrative Agent's Account (as defined in the Credit
Agreement referred to below) for such Currency, in same day funds. Each
Revolving Credit Advance made by the Bank to the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal thereof, shall be
recorded by the Bank and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Note; provided that the failure of the
Bank to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This Note is one of the Notes referred to in, and is entitled
to the benefits of, the Credit Agreement dated as of May [__],1998 (the "Credit
Agreement") among Young & Rubicam Inc., the Subsidiary Borrowers party thereto,
the Bank and certain other banks party thereto, and Citibank, N.A., as
Administrative Agent for the Bank and such other banks. The Credit Agreement,
among other things, (i) provides for the making of advances (the "Revolving
Credit Advances") by the Bank to the Borrower from time to time in an aggregate
amount not to exceed at any time outstanding the Dollar amount first above
mentioned, the indebtedness of the Borrower resulting from each such Revolving
Credit Advance being evidenced by this Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
Form of Note
94
-2-
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York, United States.
YOUNG & RUBICAM INC.
By________________________
Title:
Form of Note
95
EXHIBIT B-1
NOTICE OF REVOLVING CREDIT BORROWING
Citibank, N.A., as Administrative
Agent for the Banks parties
to the Credit Agreement
referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ___________
[Date]
Ladies and Gentlemen:
The undersigned, Young & Rubicam Inc., refers to the Credit
Agreement dated as of May [__], 1998 (the "Credit Agreement", the terms defined
therein being used herein as therein defined), among the undersigned, the
Subsidiary Borrowers party thereto, certain Banks party thereto and Citibank,
N.A., as Administrative Agent for said Banks, and hereby gives you notice,
irrevocably, pursuant to Section 2.01(d) of the Credit Agreement that the
undersigned hereby requests a Revolving Credit Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Revolving Credit Borrowing (the "Proposed Borrowing") as required by
Section 2.01(d) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ___________
__, _____.
(ii) The Currency of Revolving Credit Advances comprising the
Proposed Borrowing is ___________ and the Type of Revolving Credit
Advances comprising the Proposed Borrowing is [Base Rate Advances]
[LIBO Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
___________.
[(iv) The initial Interest Period for each Advance made as
part of the Proposed Borrowing is ______ month[s]](1).
[(iv)][(v)] The Borrower of such Advances is ___________.
Form of Note of Revolving Credit Borrowing
_______
(1) For LIBO Rate Advances only.
96
-2-
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in Section
4.01 [(not including the representation and warranty set forth in
Section 4.01(b))](2) are true and correct in all material respects,
before and after giving effect to the Proposed Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date (except to the extent such representations and warranties
expressly relate to an earlier date); and
(B) no Default has occurred and is continuing, or would result
from the Proposed Borrowing or from the application of the proceeds
therefrom.
Very truly yours,
YOUNG & RUBICAM INC.
By________________________
Title:
________
(2) Exclude bracketed text if the Proposed Borrowing is the initial
Borrowing under the Credit Agreement.
Form of Notice of Revolving Credit Borrowing
97
EXHIBIT B-2
NOTICE OF SWING LINE BORROWING
Citibank, N.A., as Administrative
Agent for the Banks parties
to the Credit Agreement
referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ___________
Citibank, N.A.,
as Swing Line Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ___________
[Date]
Ladies and Gentlemen:
The undersigned, Young & Rubicam Inc., refers to the Credit
Agreement dated as of May [__], 1998 (the "Credit Agreement", the terms defined
therein being used herein as therein defined), among the undersigned, the
Subsidiary Borrowers party thereto, certain Banks party thereto and Citibank,
N.A., as Administrative Agent for said Banks, and hereby gives you notice,
irrevocably, pursuant to Section 2.02(d) of the Credit Agreement that the
undersigned hereby requests a Swing Line Borrowing under the Credit Agreement,
and in that connection sets forth below the information relating to such Swing
Line (the "Proposed Borrowing") as required by Section 2.02(d) of the Credit
Agreement:
(i) The Business Day of the Proposed Borrowing is ___________
__, _____.
(ii) The aggregate amount of the Proposed Borrowing is
$___________.
(iii) The maturity of the Proposed Borrowing is ___________.
(iv) The account to which the proceeds of the Proposed
Borrowing are to be made available is ___________.
Form of Notice of Swing Line Borrowing
98
-2-
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in Section
4.01 (not including the representation and warranty set forth in
Section 4.01(b)) are true and correct in all material respects, before
and after giving effect to the Proposed Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date (except to the extent such representations and warranties
expressly relate to an earlier date); and
(B) no Default has occurred and is continuing, or would result
from the Proposed Borrowing or from the application of the proceeds
therefrom.
Very truly yours,
YOUNG & RUBICAM INC.
By________________________
Title:
Form of Notice of Swing Line Borrowing
99
EXHIBIT C-1
[Form of Opinion of General Counsel to the Company]
________, 1998
To the Banks party to the
Credit Agreement referred to
below
Citibank, N.A., as Administrative
Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Agreement dated as of May [__], 1998 (the "Credit
Agreement") among Young & Rubicam Inc. (the "Company"), the
Subsidiary Borrowers party thereto (the "Subsidiary Borrowers"
and, together with the Company, the "Borrowers"), the Banks
party thereto and Citibank, N.A., as Administrative Agent
Ladies and Gentlemen:
I am the general counsel of the Company and have acted as counsel
to the Company in connection with the preparation, execution and delivery of the
following documents:
(a) the Credit Agreement; and
(b) the Notes delivered to the Banks on the date hereof;
The documents described in the foregoing clauses (a) and (b) are collectively
referred to herein as the "Credit Documents". Unless otherwise indicated,
capitalized terms used but not defined herein shall have the respective meanings
set forth in the Credit Agreement. This opinion is furnished to you pursuant to
subsection 3.01(c) of the Credit Agreement.
In connection with this opinion, I have examined:
(A) the Credit Documents; and
(B) forms of the Notes to be delivered after the date hereof.
I also have examined the originals, or certified, conformed or reproduction
copies, of such records, agreements, instruments and other documents and have
made such other investigations as I have deemed relevant and necessary in
connection with the opinions expressed herein. As to
100
____________, 1998
Page 2
questions of fact material to this opinion, I have relied upon certificates as
to matters of fact of public officials and of officers and representatives of
the Company. In addition, I have examined, and have relied as to matters of
fact, upon the representations made in the Credit Documents.
In rendering the opinions set forth below, I have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to me as originals, the conformity to
original documents of all documents submitted to me as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
Based upon and subject to the foregoing, and subject to the
qualifications and limitations set forth herein, I am of the opinion that:
1. The Company (a) has been duly organized and is validly existing
and in good standing under the laws of the State of Delaware, (b) has the power
and authority to execute, deliver and perform each of the Credit Documents to
which it is a party and has taken all necessary action to authorize the
borrowings on the terms and conditions of the Credit Agreement and the Notes to
which it is a party and the execution, delivery and performance of the Credit
Documents to which it is a party, (c) 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, in the aggregate, reasonably be expected to have a
Material Adverse Effect, and (d) has duly executed and delivered the Credit
Agreement and the Notes to which it is a party.
2. The execution, delivery and performance of the Credit Documents,
the borrowings under the Credit Agreement and the use of proceeds thereof will
not violate any Requirement of Law or Contractual Obligation of any Credit Party
and will not result in, or require, the creation or imposition of any Lien on
any of its or their respective properties or revenues to any such Requirement of
Law or Contractual Obligation.
3. No consent or authorization of, filing with, notice to, or other
act by or in respect of, any Governmental Authority or any other Person is
required by any Credit Party in connection with the borrowings under the Credit
Agreement or with the execution, delivery, performance, validity or
enforceability of the Credit Documents.
4. To my knowledge, there is no litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or
threatened by or against the Company or any of its Domestic Subsidiaries or
against any of their respective Properties (a) with respect to any Credit
Document or any of the transactions contemplated thereby or (b) which could
reasonably be expected to have a Material Adverse Effect.
5. No Credit Party is an "investment company" or a company
"controlled" by an "investment company" within the meaning of and subject to
regulation under the Investment Company Act of 1940, as amended.
101
____________, 1998
Page 3
The opinions expressed herein are subject to the following
qualifications and comments:
(a) In connection with my opinion expressed in paragraph
1 above, I have relied upon certificates of public
officials as to good standing.
(b) My opinions in paragraphs 2 and 3 above as to
compliance with certain statutes, rules and
regulations are based upon a review of those
statutes, rules and regulations which, in my
experience, are normally applicable to borrowers
engaged in transactions of the type contemplated by
the Credit Documents and statutes, rules and
regulations applicable to corporations conducting
businesses similar to those conducted by the Credit
Parties.
I am a member of the Bar of the State of New York, and do not
express any opinion herein concerning any law other than the law of the State of
New York, the Federal law of the United States, and the Delaware General
Corporation Law.
This opinion letter is rendered to you and your permitted assignees
in connection with the above described transactions. This opinion letter may not
be relied upon by you for any other purpose, or relied upon by, or furnished to,
any other person, firm or corporation without my prior written consent.
Very truly yours,
102
EXHIBIT C-2
[Form of Opinion of Special Counsel to the Company]
________, 1998
To the Banks party to the
Credit Agreement referred to
below
Citibank, N.A., as Administrative
Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Agreement dated as of May [__], 1998 (the "Credit
Agreement") among Young & Rubicam Inc. (the "Company"), the
Subsidiary Borrowers party thereto (the "Subsidiary Borrowers"
and, together with the Company, the "Borrowers"), the Banks
party thereto and Citibank, N.A., as Administrative Agent
Ladies and Gentlemen:
We have acted as special counsel to the Borrowers in
connection with the preparation, execution and delivery of the following
documents:
(a) the Credit Agreement; and
(b) the Notes delivered to the Banks on the date hereof.
The documents described in the foregoing clauses (a) and (b)
are collectively referred to herein as the "Credit Documents". Unless otherwise
indicated, capitalized terms used but not defined herein shall have the
respective meanings set forth in the Credit Agreement. This opinion is furnished
to you pursuant to subsection 3.01(c) of the Credit Agreement.
In connection with this opinion, we have examined:
(A) the Credit Documents; and
(B) forms of the Notes to be delivered after the date hereof.
We also have examined the originals, or certified, conformed or reproduction
copies, of such records, agreements, instruments and other documents and have
made such other investigations as we have deemed relevant and necessary in
connection with the opinions expressed herein. As to questions of fact material
to this opinion, we have relied upon certificates as to matters of fact
103
______________, 1998
Page 2
of public officials and of officers and representatives of the Borrowers. In
addition, we have examined, and have relied as to matters of fact, upon the
representations made in the Credit Documents.
In rendering the opinions set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
We are opining herein as to the effect on the subject transactions of
only United States Federal law, the General Corporation Law of the State of
Delaware and the laws of the State of New York (the "Subject Laws").
Based upon and subject to the foregoing, and subject to the
qualifications and limitations set forth herein, we are of the opinion that:
1. Each Credit Document constitutes and each of the Notes delivered
after the date hereof, assuming the due authorization, execution and delivery by
each Borrower which is the maker of such Note, will constitute the valid and
legally binding obligation of each Borrower which is a party thereto,
enforceable against such Borrower in accordance with its terms.
2. No consent or authorization of, filing with, notice to, or other act
by or in respect of, any Governmental Authority under the Subject Laws is
required in connection with the borrowings under the Credit Agreement or with
the execution, delivery, performance, validity or enforceability of the Credit
Documents.
3. The execution, delivery and performance by the Borrowers of the
Credit Documents and the making of the Advances under the Credit Agreement
(assuming the proceeds of the Advances are used in the manner provided in the
Credit Agreement) will not violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
The opinions expressed herein are subject to the following
qualifications and comments:
(a) Each of the Credit Documents is subject to the
effect of (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the
rights of creditors generally and (ii) the application of
general principles of equity (regardless of whether
enforcement is considered in proceedings at law or in equity).
We express no opinion as to the applicability of Section 548
of the Bankruptcy Code or Article 10 of the New York Debtor
and Creditor Law relating to fraudulent transfers to the
obligations of any Subsidiary Borrower under any of the Credit
Documents.
(b) We express no opinion as to the effect of the
laws of any jurisdiction (other than Federal laws and the laws
of the State of New York)
104
______________, 1998
Page 3
wherein any Bank may be located which limit rates of interest
that may be charged or collected by such Bank.
(c) Insofar as certain provisions of the Credit
Agreement may provide for indemnification with respect to
violations of Federal or state securities law, the
enforceability thereof may be limited by public policy
considerations.
(d) The provisions of the Credit Agreement that
permit Administrative Agent or any of the Banks to take action
or make determinations, or to benefit from indemnities and
similar undertakings of any party to the Credit Documents, may
be subject to a requirement that such action be taken or such
determinations be made, and any action or inaction by
Administrative Agent or any of the Banks that may give rise to
a request for payment under such an undertaking be taken or
not taken, on a reasonable basis and in good faith.
(e) We express no opinion as to (i) whether a Federal
or state court outside of the State of New York would give
effect to the choice of New York law provided for in the
Credit Agreement, (ii) provisions of the Credit Agreement,
that relate to the subject matter jurisdiction of the Federal
or state courts of New York to adjudicate any controversy
related to the Credit Documents or the transactions
contemplated thereby, (iii) the waiver of inconvenient forum
set forth in Section 8.08 of the Credit Agreement, or (iv) the
waiver of jury trial found in Section 8.12 of the Credit
Agreement.
(f) Our opinions in paragraph 2 above as to
compliance with certain statutes, rules and regulations are
based upon a review of those statutes, rules and regulations
which, in our experience, are normally applicable to
transactions of the type contemplated by the Credit Documents
and statutes, rules and regulations applicable to corporations
conducting businesses similar to those conducted by the
Borrowers.
(g) To the extent that the obligations of any
Borrower may be dependent upon such matters, we have assumed
for purposes of this opinion that each party other than the
Borrowers (each, an "Other Party" and collectively, the "Other
Parties") to the agreements and contracts referred to herein
is duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation; that each Other
Party has the requisite corporate or other organizational
power and authority to perform its obligations under such
agreements and contracts, as applicable; and that such
agreements and contracts have been duly authorized, executed
and delivered by each Other Party. We have also assumed that
each such agreement and contract constitutes the legally valid
and binding obligation of all of the Other Parties party
thereto, enforceable against Other Parties in accordance with
its respective terms. Except as expressly covered in this
opinion, we are not expressing any opinion as to the effect of
compliance by any Bank with any state or Federal laws or
regulations applicable to the transactions because of the
nature of any of its businesses.
105
______________, 1998
Page 4
This opinion letter is rendered to you and your permitted
assignees in connection with the above described transactions. This opinion
letter may not be relied upon by you for any other purpose, or relied upon by,
or furnished to, any other person, firm or corporation without our prior written
consent.
Very truly yours,
106
EXHIBIT D
[Form of Opinion of Special New York Counsel
to the Administrative Agent]
___________, 1998
To the Banks party to the
Credit Agreement referred to
below
Citibank, N.A., as Administrative
Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as special New York counsel to Citibank, N.A.,
as Administrative Agent, in connection with the Credit Agreement dated as of May
[__], 1998 (the "Credit Agreement") among Young & Rubicam Inc. (the "Company"),
the Subsidiary Borrowers party thereto (the "Subsidiary Borrowers" and, together
with the Company, the "Borrowers"), the Banks party thereto and Citibank, N.A.,
as Administrative Agent, providing for loans to be made by said Banks to the
Borrowers in an aggregate principal amount at any one time outstanding not
exceeding $400,000,000 or the equivalent in certain other currencies. Terms
defined in the Credit Agreement are used herein as defined therein. This opinion
is being delivered pursuant to Section 3.01(d) of the Credit Agreement.
In rendering the opinions expressed below, we have assumed,
with respect to all of the documents referred to in this opinion letter, that:
(i) such documents have been duly authorized by, have
been duly executed and delivered by, and (except to
the extent set forth in the opinions below as to the
Borrowers) constitute legal, valid, binding and
enforceable obligations of, all of the parties to
such documents;
(ii) all signatories to such documents have been duly
authorized;
Form of Opinion of Special New York
Counsel to the Administrative Agent
107
-2-
(iii) all of the parties to such documents are duly
organized and validly existing and have the power and
authority (corporate or other) to execute, deliver
and perform such documents; and
(iv) all foreign exchange and other governmental consents
and approvals required in connection with the
execution, delivery, performance, validity or
enforceability of the Credit Agreement and the Notes
have been made or obtained and are in full force and
effect.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that the Credit Agreement constitutes,
and the Notes when duly executed and delivered for value will constitute, legal,
valid and binding obligation of the Borrowers, enforceable against the Borrowers
in accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or transfer or
other similar laws relating to or affecting the rights of creditors generally
(including the possible judicial application of foreign laws or governmental
action affecting the rights of creditors generally) and except as the
enforceability thereof is subject to the application of general principles of
equity (regardless of whether considered in a proceeding in equity or at law),
including, without limitation, (a) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and (b) concepts of
materiality, reasonableness, good faith and fair dealing.
The foregoing opinions are subject to the following comments
and qualifications:
(A) The enforceability of Section 8.04(b) of the Credit
Agreement may be limited by laws limiting the enforceability of
provisions exculpating or exempting a party from, or requiring
indemnification of a party for, its own action or inaction, to the
extent such action or inaction involves gross negligence, recklessness
or willful or unlawful conduct.
(B) The enforceability of provisions in the Credit Agreement
to the effect that terms may not be waived or modified except in
writing may be limited under certain circumstances.
(C) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which any Bank is located (other than the State of
New York) that limit the interest, fees or other charges such Bank may
impose, (ii) the second sentence of Section 2.16 of the Credit
Agreement, (iii) the second sentence of Section 8.08 of the Credit
Agreement, insofar as such sentence relates to the subject matter
jurisdiction of the United States District Court for the Southern
District of New York to adjudicate any controversy related to the
Credit Agreement, (iv) the waiver of inconvenient forum set forth in
Section 8.08 of the Credit Agreement with respect to proceedings in the
United States
Form of Opinion of Special New York
Counsel to the Administrative Agent
000
-0-
Xxxxxxxx Xxxxx for the Southern District of New York, (v) Section 8.09
of the Credit Agreement.
(D) We point out with reference to obligations stated to be
payable in a currency other than Dollars that (i) a New York statute
provides that a judgment rendered by a court of the State of New York
in respect of an obligation denominated in any such other currency
would be rendered in such other currency and would be converted into
Dollars at the rate of exchange prevailing on the date of entry of the
judgment and (ii) a judgment rendered by a Federal court sitting in the
State of New York in respect of an obligation denominated in any such
other currency may be expressed in Dollars, but we express no opinion
as to the rate of exchange such Federal court would apply.
The foregoing opinions are limited to matters involving the Federal
laws of the United States and the law of the State of New York, and we do not
express any opinion as to the laws of any other jurisdiction.
This opinion letter is, pursuant to Section 3.01 of the Credit
Agreement, provided to you by us in our capacity as special New York counsel to
the Administrative Agent and may not be relied upon by any Person for any
purpose other than in connection with the transactions contemplated by the
Credit Agreement without, in each instance, our prior written consent.
Very truly yours,
Form of Opinion of Special New York
Counsel to the Administrative Agent
109
EXHIBIT E
ASSIGNMENT AND ACCEPTANCE
Dated ____________ __, _____
Reference is made to the Credit Agreement dated as of May
[__], 1998 (the "Credit Agreement") among Young & Rubicam Inc., a New York
corporation (the "Company"), the Subsidiary Borrowers party thereto, the Banks
(as defined in the Credit Agreement) and Citibank, N.A., as Administrative Agent
for the Banks (the "Administrative Agent"). Terms defined in the Credit
Agreement are used herein with the same meaning.
_____________ (the "Assignor") and _____________ (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, that interest in
and to all of the Assignor's rights and obligations under the Credit Agreement
as of the date hereof which represents the percentage interest specified on
Schedule 1 of all outstanding rights and obligations under the Credit Agreement,
including, without limitation, such interest in the Assignor's Commitment, the
Revolving Credit Advances and the Swing Line Advances owing to the Assignor, and
the Notes held by the Assignor. After giving effect to such sale and assignment,
the Assignee's Commitment and the amount of the Revolving Credit Advances and
Swing Line Advances owing to the Assignee will be as set forth in Section 2 of
Schedule 1.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of any Borrower or the performance or observance by any Borrower of
any of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto; and (iv) attaches the Notes referred to in
paragraph 1 above and requests that the Administrative Agent exchange such Notes
for a new Note to the order of the Assignee in an amount equal to the Commitment
assumed by it pursuant hereto and a new Note to the order of the Assignor in an
amount equal to the Commitment retained by it under the Credit Agreement, in
each case specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof and such
Form of Assignment and Acceptance
110
-2-
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance; (ii)
agrees that it will, independently and without reliance upon the Administrative
Agent, the Assignor or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement;
(iii) appoints and authorizes the Administrative Agent to take such action as
administrative agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (iv) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a Bank;
and (v) specifies as its Domestic Lending Office (and address for notices) and
Eurodollar Lending Office the offices set forth beneath its name on the
signature pages hereof.
4. Following the execution of this Assignment and Acceptance
by the Assignor and the Assignee and the consent of the Company (to the extent
required pursuant to Section 8.07 of the Credit Agreement), it will be delivered
to the Administrative Agent for acceptance and recording by the Administrative
Agent. The effective date of this Assignment and Acceptance shall be the date of
acceptance thereof by the Administrative Agent, unless otherwise specified on
Schedule 1 hereto (the "Closing Date").
5. Upon such acceptance and recording by the Administrative
Agent, as of the Closing Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Bank thereunder and (ii) the Assignor shall, to
the extent provided in this Assignment and Acceptance, relinquish its rights and
be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Closing Date, the Administrative Agent shall make all
payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the Credit
Agreement and the Notes for periods prior to the Closing Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective officers thereunto
duly authorized, as of the date first above written, such execution being made
on Schedule 1 hereto.
Form of Assignment and Acceptance
111
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
Percentage assigned to Assignee _______________%
Assignee's Commitment $______________
Aggregate outstanding principal
amount of Revolving Credit Advances assigned $______________
Principal Amount of Note payable to Assignee $______________
Principal Amount of Note payable to Assignor $______________
Aggregate outstanding principal
amount of Swing Line Advances assigned $______________
Closing Date (if other than
date of acceptance by
Administrative Agent)* __________ __, _____
[NAME OF ASSIGNOR], as Assignor
By______________________________
Title:
[NAME OF ASSIGNEE], as Assignee
By______________________________
Title:
Domestic Lending Office:
Eurodollar Lending Office:
* This date should be no earlier than the date of acceptance by the
Administrative Agent.
Form of Assignment and Acceptance
112
-2-
Accepted this ____ day
of _______, _____
CITIBANK, N.A., as
Administrative Agent
By_____________________
Title:
CONSENTED TO:
YOUNG & RUBICAM INC.
By_____________________
Title:
Form of Assignment and Acceptance
113
EXHIBIT F
SUBSIDIARY BORROWER SUPPLEMENT
SUPPLEMENT dated as of ___________ __, _____ to the Credit
Agreement referred to below by [NAME OF SUBSIDIARY BORROWER], a ___________ duly
organized under the laws of ___________ (the "New Subsidiary Borrower").
Reference is hereby made to the Credit Agreement dated as of
May [__], 1998, among Young & Rubicam Inc. (the "Company"), the Subsidiary
Borrowers party thereto, certain Banks party thereto and Citibank, N.A., as
Administrative Agent for said Banks. Terms defined in the Credit Agreement are
used herein as defined therein. Section 8.15 of the Credit Agreement permits
Subsidiaries of the Company to become a party to the Credit Agreement as a
Subsidiary Borrower thereunder subject to certain conditions specified therein,
including execution of a supplement to the Credit Agreement in substantially the
form hereof by such Subsidiary and delivery of such supplement to the
Administrative Agent. The New Subsidiary Borrower is a Subsidiary of the Company
and desires to become a party to the Credit Agreement as a Subsidiary Borrower
thereunder. Accordingly, the New Subsidiary Borrower hereby agrees as follows:
(a) The New Subsidiary Borrower hereby acknowledges that it
has received a copy of the Credit Agreement and hereby agrees that, upon
acceptance hereof by the Administrative Agent, the New Subsidiary Borrower shall
be a party to the Credit Agreement with the rights and obligations of a Borrower
thereunder, to the same extent as if it were a Borrower originally party
thereto. Without limiting the generality of the foregoing, the New Subsidiary
Borrower hereby submits to the jurisdiction of the courts, and waives the right
to a jury trial, as provided by Sections 8.08 and 8.12 of the Credit Agreement.
(b) The New Subsidiary Borrower hereby represents and warrants
to the Administrative Agent and the Banks that the representations and
warranties set forth in Article IV of the Credit Agreement are true and correct
on and as of the date hereof.
(c) Upon acceptance hereof by the Administrative Agent, this
Supplement shall become a part of the Credit Agreement, which shall continue in
full force and effect in accordance with the provisions thereof in effect on the
date hereof, as supplemented to the date hereof.
(d) The New Subsidiary Borrower hereby instructs its counsel
to deliver the opinion referred to in Section 8.15(a)(iv) of the Credit
Agreement to the Administrative Agent and the Banks.
Form of Subsidiary Borrower Supplement
114
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IN WITNESS WHEREOF, the New Subsidiary Borrower has caused
this Supplement to be executed by an authorized officer as of the date first
above written.
[NAME OF SUBSIDIARY BORROWER]
By___________________________
Title:
ACCEPTED:
[NAME OF SUBSIDIARY BORROWER]
By___________________________
Title:
Form of Subsidiary Borrower Supplement