AMENDMENT NO. 2
Dated as of March 15, 1999
This AMENDMENT AND CONSENT (this "Amendment") made by and among NFO
WORLDWIDE, INC., a Delaware corporation (the "Borrower"), FLEET NATIONAL BANK, a
national banking association organized under the laws of the United States of
America (the "Administrative Agent"), THE CHASE MANHATTAN BANK, a New York
banking corporation (together with the Administrative Agent, the "Co-Agents")
and the BANKS (the "Banks") parties to the Credit Agreement referred to below.
PRELIMINARY STATEMENTS:
WHEREAS, the Borrower, the Co-Agents, and the Banks have hereto fore
entered into that certain Credit Agreement, dated as of March 9, 1998, as
amended by Amendment No. 1, dated as of November 20, 1998 (the "Credit
Agreement"; the capitalized terms not otherwise defined herein being used herein
as therein defined).
WHEREAS, the Borrower has requested that the Banks consent to (i) the
Borrower's issuance of additional Subordinated Debt in an aggregate principal
amount not to exceed US$8,000,000 pursuant to a certain Note Purchase Agreement,
dated as of March 15, 1999 (the "Allstate SubNote Purchase Agreement"), in order
to repay the Interim Loan; (ii) the Borrower's issuance of additional Debt in an
aggregate principal amount not to exceed US$7,000,000 pursuant to a certain Note
Purchase Agreement, dated as of March 15, 1999 (the "Allstate Note Purchase
Agreement"; and together with the Allstate SubNote Purchase Agreement, the
"Allstate Noteholder Agreements"); and (iii) certain amendments to the
Subordinated Note Purchase Agreement to reflect the inclusion of the new
"Purchaser" under the Allstate Noteholder Agreements; and
WHEREAS, the Borrower has requested that the Banks amend the Credit
Agreement (i) to include references to the Allstate Noteholder Agreements in
each applicable provision of the Credit Agreement wherein the relevant
Noteholders Documents are specified, and (ii) to modify certain defined terms
contained in Schedule B of the Credit Agreement to conform to the corresponding
amendments of the same made concurrently herewith in respect of the Note
Purchase Agreement and the Existing Note Purchase Agreement, and the Banks and
the Co-Agents have agreed to amend the Credit Agreement as hereinafter set
forth;
NOW, THEREFORE, in consideration of the foregoing premises, and for
other good and valuable consideration, the Borrower, the Banks and the Co-Agents
hereby agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 3 hereof, hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended by
adding the following definitions in the appropriate alphabetical order to such
Section, or replacing the definitions in the case of terms which currently exist
in the Credit Agreement, as follows:
"Allstate Note Purchase Agreement" means those certain Note
Purchase Agreements, dated as of March 15, 1999, among the Borrower and
the "Purchasers" or "purchasers" identified therein, including Allstate
Life Insurance Company, providing for the issuance of Debt in an
aggregate principal amount not to exceed $7,000,000, as the same may be
amended, restated, or supplemented from time to time.
"Allstate Noteholder Agreements" means, collectively, the
Allstate Note Purchase Agreement and the Allstate SubNote Purchase
Agreement.
"Allstate SubNote Purchase Agreement" means those certain Note
Purchase Agreements, dated as of March 15, 1999, among the Borrower and
the "Purchasers" or "purchasers" identified therein, including Allstate
Life Insurance Company, providing for the issuance of Subordinated Debt
in an aggregate principal amount not to exceed $8,000,000, as the same
may be amended, restated, or supplemented from time to time.
"Funded Debt" means, with respect to any Person, all Debt of
such Person for money borrowed, including any indebtedness incurred
pursuant to the provisions of any revolving credit agreement or other
similar agreement; provided, that, for purposes of Article 8 (including
for purposes of the definitions of terms used therein), the definition
of "Funded Debt" means, with respect to any Person, all Debt of such
Person which by its terms or by the terms of any instrument or
agreement relating thereto matures, or which is otherwise payable or
unpaid, one year or more from, or is directly or indirectly renewable
or extendible at the option of the obligor in respect thereof to a date
one year or more (including, without limitation, an option of such
obligor under a revolving credit or similar agreement obligating the
lender or lenders to extend credit over a period of one year or more)
from, the date of the creation thereof. The amount of Funded Debt
outstanding under any such revolving credit or similar agreement
(including this Agreement) on any date shall be deemed to be the
average daily amount outstanding under such facility during the period
of 365 consecutive days ending on and including such date, and not the
actual amount outstanding on such date, except that for purposes of
compliance with Sections 8.2 and 8.4, the amount
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of Funded Debt outstanding under any revolving credit or similar
agreement (including this Agreement) on any such date of calculation
shall be the actual amount outstanding on such date, provided, however,
that other than with respect to Sections 8.2 and 8.4, for periods on
and after March 15, 1999 (the "March Payment Date"), any determination
of the amount of Funded Debt of the Borrower solely for purposes of
determining compliance by the Borrower under Article 8 (including for
purposes of the definitions of terms used therein) shall be determined
as if the aggregate principal amount being applied to reduce the
Revolving Loans on the March Payment Date from the proceeds received by
the Borrower pursuant to the Allstate Noteholder Agreements had not
been outstanding during the period from and including November 20, 1998
up to but excluding the March Payment Date.
"Noteholders Documents" means, collectively, the Existing Note
Purchase Agreement, the Note Purchase Agreement, the Subordinated Note
Purchase Agreement, the Allstate Note Purchase Agreement, the Allstate
SubNote Purchase Agreement, and any other note purchase agreements
which may from time to time be executed by the Borrower from and after
the date hereof in connection with the issuance of Debt.
"Schedule B" means the Schedule B to the Note Purchase
Agreement delivered to the Banks on November 20, 1998, as such Schedule
is amended by Second Amendment to Note Purchase Agreements, dated March
15, 1999, among the Borrower and the other signatories thereto, a copy
of which amendment is attached hereto as Exhibit A. For purposes of the
definitions set forth in Schedule B, as amended, which are utilized by
reference herein, the reference to the word "Company" shall mean and be
deemed to be the Borrower, and the reference to the words "Restricted
Subsidiaries" shall mean and be deemed to be those Subsidiaries which
may qualify as a "Restricted Subsidiary" under the Note Purchase
Agreement, and any other capitalized terms utilized within any
definition contained on Schedule B that is utilized herein shall be
construed such that the practical effect of any such definitions shall
be applied herein as applied in the Note Purchase Agreement.
(b) Section 7.1 of the Credit Agreement is hereby amended by
adding the word "and" at the end of Section 7.1(k), by replacing the phrase ";
and" at the end of Section 7.1(l) with ".", and by deleting Section 7.1(m) in
its entirety.
(c) Section 7.2(c) of the Credit Agreement is hereby amended
to read as follows:
"(c) the Guaranty, guarantees, in substantially the form of
the Guaranty, executed by Guarantors in connection with the Existing
Note Purchase
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Agreement, the Note Purchase Agreement and the Allstate Note Purchase
Agreement or any other note purchase agreement, and guarantees executed
by the Guarantors in connection with the Subordinated Note Purchase
Agreement and the Allstate SubNote Purchase Agreement;".
(d) Section 7.13 of the Credit Agreement is hereby amended in
its entirety to read as follows:
"Section 7.13. No Changes to Noteholders Documents. Amend,
modify, supplement, waive compliance with, or assent to noncompliance
with, any term, provision or condition set forth in (i)(A) Section 8,
10 or 11, or Schedule B of the Existing Note Purchase Agreement, the
Note Purchase Agreement, or the Allstate Note Purchase Agreement, or
(B) Section 8, 10, or 11 of the Subordinated Note Purchase Agreement or
the Allstate SubNote Purchase Agreement, or any such comparable
provisions contained in any Noteholders Documents, in each case,
without first providing notice of the same to the Administrative Agent;
or (ii) Section 13 of the Subordinated Note Purchase Agreement, or
Section 13 of the Allstate SubNote Purchase Agreement, or any other
similar subordination provisions contained in any other Noteholders
Documents that constitute subordinated debt without the prior written
consent of the Required Banks."
(e) Section 8.1(c) of the Credit Agreement is hereby amended
in its entirety to read as follows:
"(c) 100% of the Net Proceeds from any issuance by the
Borrower of Subordinated Debt from and after September 30, 1998,
excluding the SubNote Debt as of November 20, 1998 and the Debt issued
by the Borrower under the Allstate SubNote Purchase Agreement as of
March 15, 1999."
(f) Section 9.1(j) of the Credit Agreement is hereby amended
in its entirety to read as follows.
"(j) an Event of Default shall have occurred and be continuing
under any of (i) the Existing Note Purchase Agreement, (ii) the Note
Purchase Agreement, (iii) the Subordinated Note Purchase Agreement,
(iv) the Allstate Note Purchase Agreement, (v) the Allstate SubNote
Purchase Agreement, or (vi) any other Noteholders Documents."
SECTION 2. CONSENT TO BORROWER'S ISSUANCE OF DEBT. (a) Subject to
satisfaction of the conditions precedent set forth in Section 3 hereof, each of
the Co-Agents and the Banks hereby consents to (i) the Borrower's issuance of
additional subordinated Debt in an aggregate principal amount not to exceed
US$8,000,000 pursuant to the Allstate SubNote Purchase Agreement, a copy of
which was delivered to the Banks on March 15, 1999, and (ii) the Borrower's
issuance of additional Debt
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in an aggregate principal amount not to exceed US$7,000,000 pursuant to the
Allstate Note Purchase Agreement, a copy of which was delivered to the Banks on
March 15, 1999; and (iii) the changes set forth in that certain First Amendment
to Note Purchase Agreements dated as of March 15, 1999, among the Borrower and
the other parties signatories thereto, which amends the Subordinated Note
Purchase Agreement (the "First Amendment"), including the amendments to the
defined terms "Required Senior Debt Holders" and "Requisite Senior Debt" in
Schedule B to the Subordinated Note Purchase Agreement, a copy of which First
Amendment is attached hereto as Exhibit B, provided, that, all of the proceeds
received by the Borrower in connection with the Debt issuance under (x) the
Allstate SubNote Purchase Agreement shall be applied by the Borrower to repay
the Interim Loan as provided in Sections 2.5(a)(v) and 6.10 of the Credit
Agreement, and (y) the Allstate Note Purchase Agreement shall be applied by the
Borrower to repay the Revolving Loans as provided in the Credit Agreement.
(b) Each Bank hereby acknowledges and agrees that (i) the Debt
issued by the Borrower under the Allstate SubNote Purchase Agreement constitutes
"Subordinated Debt" as such term is defined in the Credit Agreement; (ii) upon
application of the proceeds received by the Borrower as described in the last
proviso of Section 2(a) hereof, the Subordinated Debt issued by the Borrower
pursuant to the Allstate SubNote Purchase Agreement satisfies the requirements
set forth in Sections 6.10(i) and 7.1(c) of the Credit Agreement; and (iii) upon
the closing of the transactions contemplated by the Allstate SubNote Purchase
Agreement and the application of the proceeds as provided in the last proviso of
Section 2(a) hereof, the Step-Down Date shall have occurred.
SECTION 3. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
effective when, and only when, the Administrative Agent shall have received
counterparts of this Amendment duly executed by the Borrower, the Co-Agents, the
Banks, and the Guarantors, and all of the following items in form and substance
satisfactory to the Administrative Agent and the Banks:
(a) Copies of the resolutions of the Board of Directors or
Executive Committee of the Borrower approving the transactions contemplated by
the Allstate Noteholder Agreements, the documents and instruments executed in
connection therewith, and this Amendment and the documents executed in
connection herewith.
(b) A fully executed copy of each of the Allstate Noteholder
Agreements, and any material related documents.
(c) A fully executed Amended and Restated Sharing Agreement,
dated as of March 15, 1999, in substantially the form of Exhibit C hereto.
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(d) A certificate signed by a duly authorized officer of the
Borrower stating that:
(i) The representations and warranties contained in Section 4
of the Amendment and the other representations and warranties contained
in Article 5 of the Credit Agreement, as amended, and in the other
Facility Documents are true and correct in all material respects on and
as of the date of such certificate as though made on and as of such
date (unless such representation and warranty is limited to a
particular date, in which case, such representation and warranty shall
be true and correct in all material respects as of such date);
(ii) Upon the consummation of the transactions described in
the Allstate Noteholder Agreements, the Borrower shall be in compliance
with the financial covenants contained in Article 8 of the Credit
Agreement, as amended, as of the date of such certificate; and
(iii) After giving effect to the terms of this Amendment, the
Allstate Noteholder Agreements, and the amendments to the Noteholders
Documents, no event shall have occurred and be continuing which
constitutes a Default or an Event of Default.
(e) Payment to the Administrative Agent of all costs, fees,
expenses and charges incurred by the Administrative Agent in connection with the
negotiation, preparation, execution and delivery of this Amendment.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower
represents and warrants for itself as follows:
(a) Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation.
(b) The execution, delivery and performance by the Borrower of
this Amendment, and any certificates, documents, or instruments in connection
herewith are within the Borrower's corporate powers and authority, have been
duly authorized by all necessary corporate action and do not and will not: (a)
require any consent or approval of its stockholders; (b) contravene its charter
or by-laws; (c) violate any provision of, or require any filing, registration,
consent or approval under, any law, rule, regulation (including without
limitation, Regulation U), order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to the Borrower
or any Guarantor; (d) result in a breach of or constitute a default or require
any consent under any indenture or loan or credit agreement or any other
agreement, lease or instrument to which the Borrower or any Guarantor is a party
or by which it or its properties may be bound or affected; (e) result in, or
require, the creation or imposition of any Lien upon or with respect
6
to any of the properties now owned or hereafter acquired by the Borrower or any
Guarantor; or (f) cause the Borrower or any Guarantor to be in default under any
such law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or any such indenture, agreement, lease or instrument,
except where such contravention, violation, breach, default or Lien is not
reasonably expected to have a Material Adverse Effect.
(c) No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery or performance by the Borrower of this
Amendment, or any of the documents, instruments and certificates delivered in
connection herewith, which have not already been obtained except to the extent
that failure to do so is not reasonably expected to cause a Material Adverse
Effect.
(d) This Amendment, together with any documents, instruments,
certificates or agreements executed or delivered in connection herewith to which
the Borrower or any of its Subsidiaries is a party, constitute legal, valid and
binding obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms, except to the extent that such
enforcement may be limited by general principles of equity and applicable
bankruptcy, insolvency and other similar laws affecting creditors' rights
generally.
(e) After giving effect to the terms of this Amendment, no
event has occurred and is continuing which constitutes a Default or an Event of
Default.
SECTION 5. REFERENCE TO AND EFFECT ON THE FACILITY DOCUMENTS. (a) Upon
the effectiveness of this Amendment, on and after the date hereof each reference
in the Credit Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import, and each reference in any Facility Documents to the Credit
Agreement, shall mean and be a reference to the Credit Agreement as amended
hereby.
(b) Except as specifically amended herein, the Credit
Agreement and the other Facility Documents shall remain in full force and effect
and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment, together with the consent described in Section 2, shall not, except
as expressly provided herein, operate as a waiver of any right, power or remedy
of any Co-Agent or any Bank under any of the Facility Documents, or constitute a
waiver of any provision of any of the Facility Documents.
(d) The Co-Agents and the Banks are under no obligation to
enter into this Amendment. Except as expressly provided herein, the Co-Agents'
and
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the Banks' entering into this Amendment shall not be deemed to limit or hinder
any rights of any Co-Agent or Bank under the Credit Agreement, nor shall it be
deemed to create or infer a course of dealing between any such party or any Bank
or the Borrower or any Subsidiary with regard to any provision of the Credit
Agreement.
(e) Except as set forth herein, the consent described in
Section 2 shall have no effect on any other portion of the Credit Agreement, as
amended by this Amendment, all of which shall remain in full force and effect,
including all of the Co-Agents' and the Banks' rights and remedies hereunder and
thereunder, all of which are expressly reserved.
SECTION 6. ACKNOWLEDGMENT OF OUTSTANDING LOANS. The Borrower hereby
acknowledges, certifies and agrees that: (a) pursuant to the Credit Agreement,
the Banks have made certain Revolving Loans on a revolving basis to the Borrower
that are outstanding as of March 23, 1999 in the approximate aggregate principal
amount of US$52,179,811.90; and (b) the obligations of the Borrower to repay
those Loans, with interest, to the Banks and to perform or otherwise satisfy its
other obligations under the Credit Agreement and the other Facility Documents
(i) each remain and shall continue in full force and effect, both before and
after giving effect to this Amendment, (ii) are not subject to any defense,
counterclaim, setoff, right of recoupment, abatement, reduction or other claim
or determination, and (iii) are and shall continue to be governed by the terms
and provisions of the Credit Agreement, as supplemented, modified and amended by
this Amendment, and the other Facility Documents.
SECTION 7. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on
demand all costs and expenses of the Administrative Agent and the Banks in
connection with the preparation, execution and delivery of this Amendment and
the other instruments and 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 and the Banks as to their rights and responsibilities
hereunder and thereunder. The Borrower further agrees to pay on demand all costs
and expenses, if any (including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Amendment and the other instruments and
documents to be delivered hereunder, including, without limitation, reasonable
counsel fees and expenses in connection with the enforcement of rights under
this Section 7. In addition, the Borrower shall pay any and all stamp and other
taxes payable or determined to be payable in connection with the execution and
delivery of this Amendment, and the other instruments and documents to be
delivered hereunder, and agrees to save the Co-Agents and the Banks harmless
from and against any and all liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes.
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SECTION 8. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
SECTION 9. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Connecticut.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE BORROWER:
NFO WORLDWIDE, INC.
By: /s/ ▇▇ ▇▇▇▇▇▇
-------------
Name: ▇▇ ▇▇▇▇▇▇
Title: Vice President - Assistant Secretary
BANK, CO-AGENT AND ADMINISTRATIVE
AGENT:
FLEET NATIONAL BANK
By: /s/ ▇. ▇▇▇▇▇▇▇ Caner
--------------------
Name: ▇. ▇▇▇▇▇▇▇ Caner
Title: Vice President
BANK AND CO-AGENT:
THE CHASE MANHATTAN BANK
By: /s/ ▇▇▇▇ ▇. Aria
----------------
Name: ▇▇▇▇ ▇. Aria
Title: Vice President
BANK:
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇▇▇ Tuckington
------------------------
Title: ▇▇▇▇▇▇▇▇▇ Tuckington
Name: Vice President
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BANK:
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Title: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: Vice President
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EXHIBIT A
[FORM OF SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT]
EXHIBIT B
[FORM OF FIRST AMENDMENT TO SUBORDINATED NOTE PURCHASE
AGREEMENT]
EXHIBIT C
[FORM OF AMENDED AND RESTATED SHARING AGREEMENT]
