SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
|X| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended JUNE 30, 2001
OR
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Commission File Number: 1-6686
THE INTERPUBLIC GROUP OF COMPANIES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 13-1024020
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1271 Avenue of the Americas, New York, New York 10020 10020
- ----------------------------------------------------- -----
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 399-8000
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days. Yes |X| No |_|
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date. Common Stock outstanding at
July 31, 2001: 375,830,709 shares.
THE INTERPUBLIC GROUP OF COMPANIES, INC. AND ITS SUBSIDIARIES
I N D E X
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Balance Sheet
June 30, 2001 (unaudited) and
December 31, 2000
Consolidated Income Statement
Three months ended June 30, 2001 And 2000 (unaudited)
Consolidated Income Statement
Six months ended June 30, 2001 And 2000 (unaudited)
Consolidated Statement of Comprehensive Income
Three months ended June 30, 2001
And 2000 (unaudited)
Consolidated Statement of Comprehensive Income
Six months ended June 30, 2001
And 2000 (unaudited)
Consolidated Statement of Cash Flows
Six months ended June 30, 2001 And 2000 (unaudited)
Notes to Consolidated Financial Statements (unaudited)
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations
Item 3. Quantitative and Qualitative Disclosures
about Market Risk
PART II. OTHER INFORMATION
Item 2(c) CHANGES IN SECURITIES
Item 6. EXHIBITS AND REPORTS ON FORM 8-K.
SIGNATURES
INDEX TO EXHIBITS
2
PART I - FINANCIAL INFORMATION
ITEM 1
FINANCIAL STATEMENTS
THE INTERPUBLIC GROUP OF COMPANIES, INC. AND ITS SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
(DOLLARS IN THOUSANDS EXCEPT SHARE AND PER SHARE DATA)
ASSETS
JUNE 30,
2001 DECEMBER 31,
(UNAUDITED) 2000
------------ ------------
CURRENT ASSETS:
Cash and cash equivalents (includes certificates of deposit:
2001 - $98,795; 2000 - $110,919) $ 686,119 $ 844,634
Marketable securities, at cost which approximates market 53,736 39,957
Receivables (net of allowance for doubtful accounts:
2001 - $85,065; 2000 - $85,718) 5,327,742 5,735,655
Expenditures billable to clients 492,368 437,929
Prepaid expenses and other current assets 283,270 237,843
------------ ------------
Total current assets 6,843,235 7,296,018
------------ ------------
OTHER ASSETS:
Investment in unconsolidated affiliates 170,169 178,858
Deferred taxes on income 410,345 380,306
Other investments and miscellaneous assets 525,137 525,395
------------ ------------
Total other assets 1,105,651 1,084,559
------------ ------------
FIXED ASSETS, AT COST:
Land and buildings 168,536 174,079
Furniture and equipment 1,117,341 1,103,741
Leasehold improvements 465,499 427,856
------------ ------------
1,751,376 1,705,676
Less: accumulated depreciation (922,581) (879,218)
------------ ------------
Total fixed assets 828,795 826,458
------------ ------------
Intangible assets (net of accumulated amortization:
2001 - $935,826; 2000 - $861,487) 3,013,163 3,154,977
------------ ------------
TOTAL ASSETS $ 11,790,844 $ 12,362,012
============ ============
3
FINANCIAL STATEMENTS
THE INTERPUBLIC GROUP OF COMPANIES, INC. AND ITS SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
(DOLLARS IN THOUSANDS EXCEPT SHARE AND PER SHARE DATA)
LIABILITIES AND STOCKHOLDERS' EQUITY
JUNE 30,
2001 DECEMBER 31,
(UNAUDITED) 2000
----------- ------------
CURRENT LIABILITIES:
Payable to banks $ 1,324,520 $ 549,260
Accounts payable 5,083,733 5,751,335
Accrued expenses 798,642 1,111,060
Accrued income taxes 144,169 210,303
------------ ------------
Total current liabilities 7,351,064 7,621,958
------------ ------------
NONCURRENT LIABILITIES:
Long-term debt 869,414 998,687
Convertible subordinated notes 540,656 533,104
Deferred compensation and reserve for termination allowances 466,337 464,329
Accrued postretirement benefits 55,970 55,197
Other noncurrent liabilities 92,030 105,686
Minority interests in consolidated subsidiaries 103,124 100,580
------------ ------------
Total noncurrent liabilities 2,127,531 2,257,583
------------ ------------
STOCKHOLDERS' EQUITY:
Preferred Stock, no par value shares authorized: 20,000,000
shares issued: none
Common Stock, $.10 par value shares authorized: 550,000,000 shares issued:
2001 - 383,671,638;
2000 - 377,270,758 38,367 37,727
Additional paid-in capital 1,703,934 1,514,709
Retained earnings 1,484,011 1,667,499
Accumulated other comprehensive income (loss), net of tax (457,930) (411,581)
------------ ------------
2,768,382 2,808,354
Less: Treasury stock, at cost:
2001 - 8,216,847 shares;
2000 - 5,462,809 shares 329,224 194,758
Unamortized expense of restricted stock grants 126,909 131,125
------------ ------------
Total stockholders' equity 2,312,249 2,482,471
------------ ------------
Commitments and contingencies
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 11,790,844 $ 12,362,012
============ ============
The prior period has been restated to reflect the aggregate effect of the
acquisitions accounted for as poolings of interests. See Note (a)
The accompanying notes are an integral part of these consolidated financial
statements.
4
FINANCIAL STATEMENTS
THE INTERPUBLIC GROUP OF COMPANIES, INC. AND ITS SUBSIDIARIES
CONSOLIDATED INCOME STATEMENT
THREE MONTHS ENDED JUNE 30
(AMOUNTS IN THOUSANDS EXCEPT PER SHARE DATA)
(UNAUDITED)
2001 2000
---- ----
Revenue $ 1,743,415 $ 1,821,627
----------- -----------
Salaries and related expenses 972,419 951,873
Office and general expenses 483,821 486,914
Amortization of intangible assets 42,171 31,046
Restructuring and other merger related costs 51,294 52,775
Goodwill impairment and other 221,408 --
----------- -----------
Total operating expenses 1,771,113 1,522,608
----------- -----------
Income (loss) from operations (27,698) 299,019
Interest expense (41,368) (26,212)
Other income, net 15,370 30,201
----------- -----------
Income (loss) before provision for income taxes (53,696) 303,008
Provision for income taxes 48,325 127,589
----------- -----------
Income (loss) of consolidated companies (102,021) 175,419
Income applicable to minority interests (10,543) (11,198)
Equity in net income of unconsolidated affiliates 2,406 2,140
----------- -----------
Net income (loss) $ (110,158) $ 166,361
=========== ===========
Earnings per share:
Basic $ (.30) $ .47
Diluted $ (.30) $ .45
Dividend per share $ .095 $ .095
Weighted average shares:
Basic 368,911 356,680
Diluted 368,911 380,869
The prior period has been restated to reflect the aggregate effect of the
acquisitions accounted for as poolings of interests. See Note (a).
The accompanying notes are an integral part of these consolidated financial
statements.
5
FINANCIAL STATEMENTS
THE INTERPUBLIC GROUP OF COMPANIES, INC. AND ITS SUBSIDIARIES
CONSOLIDATED INCOME STATEMENT
SIX MONTHS ENDED JUNE 30
(AMOUNTS IN THOUSANDS EXCEPT PER SHARE DATA)
(UNAUDITED)
2001 2000
---- ----
Revenue $ 3,401,673 $ 3,406,581
----------- -----------
Salaries and related expenses 1,971,203 1,890,606
Office and general expenses 946,765 969,204
Amortization of intangible assets 84,056 64,363
Restructuring and other merger related costs 52,848 88,826
Goodwill impairment and other 221,408 --
----------- -----------
Total operating expenses 3,276,280 3,012,999
----------- -----------
Income from operations 125,393 393,582
Interest expense (78,849) (50,484)
Other income, net 36,817 48,605
Impairment of investments (160,100) --
----------- -----------
Income (loss) before provision for income taxes (76,739) 391,703
Provision for income taxes 48,744 164,665
----------- -----------
Income (loss) of consolidated companies (125,483) 227,038
Income applicable to minority interests (17,450) (15,096)
Equity in net income of unconsolidated affiliates 4,104 4,353
----------- -----------
Net income (loss) $ (138,829) $ 216,295
=========== ===========
Earnings per share:
Basic $ (.38) $ .61
Diluted $ (.38) $ .59
Dividend per share $ .19 $ .18
Weighted average shares:
Basic 367,520 356,148
Diluted 367,520 367,924
The prior period has been restated to reflect the aggregate effect of the
acquisitions accounted for as poolings of interests. See Note (a).
The accompanying notes are an integral part of these consolidated financial
statements.
6
FINANCIAL STATEMENTS
THE INTERPUBLIC GROUP OF COMPANIES, INC. AND ITS SUBSIDIARIES
CONSOLIDATED STATEMENT OF COMPREHENSIVE INCOME
THREE MONTHS ENDED JUNE 30
(DOLLARS IN THOUSANDS)
(UNAUDITED)
2001 2000
---- ----
Net Income (Loss) $(110,158) $ 166,361
--------- ---------
Other Comprehensive Income, net of tax:
Foreign Currency Translation Adjustments (11,681) (44,009)
Net Unrealized Gains (Losses) on Securities 5,281 (85,751)
--------- ---------
Other Comprehensive Income (Loss) (6,400) (129,760)
--------- ---------
Comprehensive Income (Loss) $(116,558) $ 36,601
========= =========
The prior period has been restated to reflect the aggregate effect of the
acquisitions accounted for as poolings of interests. See Note (a).
The accompanying notes are an integral part of these consolidated financial
statements.
7
FINANCIAL STATEMENTS
THE INTERPUBLIC GROUP OF COMPANIES, INC. AND ITS SUBSIDIARIES
CONSOLIDATED STATEMENT OF COMPREHENSIVE INCOME
SIX MONTHS ENDED JUNE 30
(DOLLARS IN THOUSANDS)
(UNAUDITED)
2001 2000
---- ----
Net Income (Loss) $(138,829) $ 216,295
--------- ---------
Other Comprehensive Income, net of tax:
Foreign Currency Translation Adjustments (99,031) (78,013)
Net Unrealized Gains (Losses) on Securities 52,682 (146,258)
---------
Other Comprehensive Income (Loss) (46,349) (224,271)
--------- ---------
Comprehensive Income (Loss) $(185,178) $ (7,976)
========= =========
The prior period has been restated to reflect the aggregate effect of the
acquisitions accounted for as poolings of interests. See Note (a).
The accompanying notes are an integral part of these consolidated financial
statements.
8
FINANCIAL STATEMENTS
THE INTERPUBLIC GROUP OF COMPANIES, INC. AND ITS SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
SIX MONTHS ENDED JUNE 30
(DOLLARS IN THOUSANDS)
(UNAUDITED)
2001 2000
---- ----
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $(138,829) $ 216,297
Adjustments to reconcile net income to cash used in operating activities:
Depreciation and amortization of fixed assets 99,886 89,783
Amortization of intangible assets 84,056 64,363
Amortization of restricted stock awards 24,370 16,755
Provision for (benefit of) deferred income taxes (82,055) (8,890)
Equity in net income of unconsolidated affiliates (4,104) (4,353)
Income applicable to minority interests 17,450 15,096
Translation losses 1,845 677
Net gain on investments (9,645) (8,320)
Restructuring charges, non-cash 30,235 20,600
Investment impairment 160,100 --
Goodwill impairment 197,408 --
Changes in assets and liabilities, net of acquisitions:
Receivables 214,077 (353,528)
Expenditures billable to clients (61,498) (86,746)
Prepaid expenses and other assets (42,832) (60,620)
Accounts payable and accrued expenses (770,851) 97,291
Accrued income taxes (57,608) 11,090
Deferred compensation and reserve for termination allowances 11,514 22,237
--------- -----------
Net cash (used in) provided from operating activities (326,481) 31,732
--------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Acquisitions, net (142,438) (360,260)
Capital expenditures (124,651) (128,391)
Proceeds from sale of assets 10,137 6,962
Net (purchases of) proceeds from marketable securities (18,015) (3,043)
Other investments and miscellaneous assets (74,755) (135,236)
Investments in unconsolidated affiliates (3,186) (10,319)
--------- -----------
Net cash used in investing activities (352,908) (630,287)
--------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Increase in short-term borrowings 786,975 236,934
Proceeds from long-term debt 150,045 416,649
Payments of long-term debt (261,672) (225,783)
Treasury stock acquired (105,024) (120,726)
Issuance of common stock 61,314 49,355
Cash dividends - Interpublic (59,489) (51,869)
Cash dividends - pooled companies (15,169) (24,728)
--------- -----------
Net cash provided by financing activities 556,980 279,832
--------- -----------
Deconsolidation of subsidiary -- (29,143)
Effect of exchange rates on cash and cash equivalents (36,106) (29,902)
--------- -----------
Decrease in cash and cash equivalents (158,515) (377,768)
Cash and cash equivalents at beginning of year 844,634 1,147,341
--------- -----------
Cash and cash equivalents at end of period $ 686,119 $ 769,573
========= ===========
The prior period has been restated to reflect the aggregate effect of the
acquisitions accounted for as poolings of interests. See Note (a).
The accompanying notes are an integral part of these consolidated financial
statements.
9
THE INTERPUBLIC GROUP OF COMPANIES, INC. AND ITS SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
(a) In the opinion of management, the consolidated balance sheet as of June
30, 2001, the consolidated income statements for the three months and six
months ended June 30, 2001 and 2000, the consolidated statements of
comprehensive income for the three months and six months ended June 30,
2001 and 2000, and the consolidated statements of cash flows for the six
months ended June 30, 2001 and 2000, contain all adjustments (which
include only normal recurring adjustments) necessary to present fairly the
financial position, results of operations and cash flows at June 30, 2001
and for all periods presented. Certain information and footnote
disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been
omitted. It is suggested that these consolidated financial statements be
read in conjunction with the consolidated financial statements and notes
thereto included in The Interpublic Group of Companies, Inc.'s (the
"Company", "Interpublic" or the "Registrant") December 31, 2000 annual
report to stockholders, and the consolidated financial statements and
notes thereto included in the Company's Current Report on Form 8-K dated
August 10, 2001.
The Company's consolidated financial statements, including the related
notes, have been restated for the prior periods presented to include the
results of operations, financial position and cash flows of True North
Communications Inc. ("True North") (see Note (b)).
Certain prior year amounts have been reclassified to conform with current
year presentation.
(b) On June 22, 2001, the Company completed the acquisition of True North in a
stock transaction that has been accounted for under the pooling of
interests method. In connection with the acquisition, approximately 59
million shares of common stock were issued. The accompanying financial
statements have been restated to include the results of True North for all
periods presented. Revenue and net income for True North for the first
quarter ended March 31, 2001 were $356 million and $9.7 million, for the
first quarter ended March 31, 2000 were $360 million and $7.0 million and
for the six months ended June 30, 2000 were $735 million and $30.9
million, respectively.
Following the completion of the True North acquisition, the Company
initiated a series of operational initiatives focusing on i) the
integration of the True North operations and the identification of
synergies and savings, ii) the realignment of certain Interpublic
businesses, and iii) productivity initiatives to achieve higher operating
margins. As a result of the operational initiatives, the combined Company
will be organized into four global operating divisions. Three of these
divisions will provide a full complement of global marketing services and
marketing communication services: McCann-Erickson WorldGroup, an enhanced
FCB Group and a new global marketing resource called The Partnership. The
fourth division, Advanced Marketing Services Group will focus on expanding
the Company's operations in the area of specialized marketing
communications.
In connection with these initiatives, the Company has approved a
wide-ranging restructuring plan that includes severance, lease termination
and other costs. The ultimate amount of the charges expected to be
incurred in connection with the restructuring plan (including the direct
costs of the merger) are estimated to be approximately $500 million. The
majority of this amount is expected to be incurred in the third quarter of
2001 and involves reducing the workforce by approximately 3,500 personnel
and combining or closing approximately 75 offices worldwide.
(c) In the second quarter of 2001, the Company recognized $51.3 million of
restructuring and other merger related costs in connection with its
restructuring plan. Approximately $32.4 million of this amount relates to
transaction and other costs incurred in connection with the acquisition of
True North. The remaining amount relates largely to the cost of severance
actions incurred due to the expected closure of the True North corporate
office. Approximately 60 True North corporate employees have been notified
that they will be terminated.
(d) Following the completion of the True North acquisition, in connection with
the Company's initiative on realignment of certain Interpublic businesses,
the Company is evaluating the realizability of various assets. In
connection with this review, undiscounted cash flow projections were
prepared for certain investments, and the Company determined that the
goodwill attributable to certain acquisitions was in excess of its
estimates of the entities' future cashflows. As a result, a charge of
$221.4 million was recorded in the second quarter of 2001. The largest
component of the goodwill impairment (approximately $145 million) relates
to Capita Technologies, Inc., an Internet services business. The remaining
amount relates principally to several other businesses including Internet
services and healthcare consulting, and an advertising office in Asia.
(e) During the first quarter of 2001, the Company recorded a $160.1 million
pre-tax charge ($103.7 million net of tax) to recognize the impairment of
investments primarily in publicly traded Internet-related companies,
10
including marchFIRST, Inc. (an Internet professional services firm), which
had filed for relief under Chapter 11 of the Federal Bankruptcy Code in
April 2001. The impairment charge adjusts the carrying value of remaining
investments to estimated market value where an "other than temporary
impairment" has occurred.
(f) On June 26, 2001 the Company entered into a syndicated revolving
multi-currency credit agreement. The credit agreement provides for a
364-day facility under which $500 million may be borrowed ("New
Facility"). The New Facility bears interest at variable rates based on
either Libor or a bank's base rate, at the Company's option. At June 30,
2001, there were no borrowings outstanding under the New Facility.
The $375 million, 364-day facility of the credit agreement between the
Company and a syndicate of lenders dated June 27, 2000 terminated on June
26, 2001.
On June 28, 2001, the Company issued $100 million of floating rate notes.
The notes mature on June 28, 2002, and bear interest at a variable rate
based on three months Libor. Interest payments will made quarterly in
arrears beginning in September 2001.
In July 2001, the Company entered into a credit agreement with a group of
lenders. The credit agreement provides for revolving borrowings of up to
$750 million which bear interest at variable rates based on Libor or a
bank's base rate, at the Company's option. The facility matures on
September 28, 2001, or earlier, in certain circumstances, including
without limitation, receipt by the Company of at least $375 million in
connection with one or more capital raising transactions. As of August 13,
2001, the Company has not drawn any amounts under this facility.
(g) In June 1998, the Financial Accounting Standards Board (the "FASB") issued
Statement of Financial Accounting Standards No. 133, "Accounting for
Derivative Instruments and Hedging Activities" (SFAS 133), which had an
initial adoption date of January 1, 2000. In June 1999, the FASB postponed
the adoption date by the Company of SFAS 133 until January 1, 2001. The
Company adopted the provisions of SFAS 133 effective January 1, 2001. The
adoption of SFAS 133 did not have a material impact on the Company's
financial condition or results of operations.
(h) In June 2001, the Financial Accounting Standards Board issued Statements
of Financial Accounting Standards No. 141, BUSINESS COMBINATIONS, and No.
142, GOODWILL AND OTHER INTANGIBLE ASSETS, effective for fiscal years
beginning after December 15, 2001, which requires that the purchase method
of accounting be used for all business combinations initiated after June
30, 2001. Under the new rules, goodwill and intangible assets deemed to
have indefinite lives will no longer be amortized but will be subject to
annual impairment tests in accordance with the Statements. Other
intangible assets will continue to be amortized over their useful lives.
The Company will adopt the new rules on accounting for goodwill and other
intangible assets beginning in the first quarter of 2002, however certain
provisions of these standards may also apply to any acquisitions concluded
subsequent to June 30, 2001. During 2002, the Company will perform the
first of the required impairment tests of goodwill and indefinite lived
intangible assets and has not yet determined what the effect of these
tests will be on the earnings and financial position of the Company.
(i) The Company is involved in legal and administrative proceedings of various
types. While any litigation contains an element of uncertainty, the
Company believes that the outcome of such proceedings or claims will not
have a material adverse effect on the financial position of the Company.
11
ITEM 2
THE INTERPUBLIC GROUP OF COMPANIES, INC. AND ITS SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
As discussed in Note (a), the Company's consolidated financial statements
and other financial information for prior periods have been restated to reflect
the effect of the True North acquisition accounted for as a pooling of
interests. The following discussion relates to the combined results of the
Company after giving effect to the True North pooling.
For purposes of the following discussion, the investment impairment and
goodwill impairment and other charges in 2001, and the restructuring and other
merger related costs in 2001 and 2000 will be referred to, collectively, as
"non-recurring items". The non-recurring items are described in a subsequent
section of this discussion. All amounts discussed below are as reported unless
otherwise noted.
RESULTS OF OPERATIONS
THREE MONTHS ENDED JUNE 30, 2001 COMPARED TO THREE MONTHS ENDED JUNE 30, 2000
The Company reported a net loss of $110.2 million or $.30 diluted loss per
share for the three months ended June 30, 2001. Excluding the impact of
non-recurring items, which are discussed below, net income was $117.1 million or
$.31 diluted earnings per share, compared to $201.4 million or $.54 diluted
earnings per share for the three months ended June 30, 2000.
The following table sets forth net income and earnings per share before
and after non-recurring items:
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
2001 2000
---- ----
Net income (loss) as reported $(110,158) $166,361
Earnings per share:
Basic (.30) .47
Diluted (.30) .45
Net income before non-recurring items $ 117,100 $201,400
Earnings per share:
Basic .32 .56
Diluted .31 .54
Worldwide revenue for the three months ended June 30, 2001 decreased $78
million, or 4%, to $1.7 billion compared to the same period in 2000. Domestic
revenue decreased $78 million or 7% during the second quarter of 2001 compared
to 2000. International revenue remained flat during the second quarter of 2001
compared to 2000. International revenue would have increased 8% excluding the
effect of the strengthening of the U.S. dollar. The decrease in worldwide
revenue is a result of reduced client spending in the U.S. and the negative
impact of foreign currency translation. Organic revenue growth, exclusive of
acquisitions and currency effects, declined 3% for the second quarter of 2001
compared to the prior year quarter.
Revenue from specialized marketing and communications services, which
include market research, sales promotion, direct marketing, public relations,
sports and event marketing, healthcare marketing and e-consultancy and services,
comprised approximately 40% of the total worldwide revenue for the three months
ended June 30, 2001, compared to 37% for the prior year quarter.
Worldwide operating expenses for the second quarter 2001, excluding
non-recurring items were $1.5 billion, an increase of 1.9% over the prior year
quarter. Salaries and related expenses were $972 million or 56% of revenue for
the second quarter of 2001 as compared to $952 million or 52% of revenue for the
second quarter of 2000. Office and general expenses were $484 million for the
second quarter of 2001 compared to $487 million for the second quarter of 2000.
The unfavorable operating expense variance relative to revenue reflects the fact
that the Company's costs in the quarter were not reduced as quickly and deeply
as needed in response to this revenue decline.
Income from operations, excluding non-recurring items, was $245 million
for the second quarter of 2001, compared to $352 million for the second quarter
of 2000, a decrease of 30%. Exclusive of acquisitions, currency effects and
12
amortization of intangible assets, income from operations decreased 29% for the
second quarter of 2001 compared to the second quarter of 2000. Operating income
was negatively impacted by the slowdown in client spending. The Company's cost
cutting measures are continuing. The majority of the total planned staffing
terminations for 2001 have now occurred. The benefit of the savings is expected
to accelerate in the third quarter and further increase in the fourth quarter.
Interest expense was $41 million for the second quarter of 2001, compared
to $26 million for the prior year quarter. The increase is primarily a result of
higher debt levels.
Other income, net, which consists of interest income, investment income
and net gains from equity investments decreased 49% to $15 million for the
second quarter of 2001 compared to $30 million for the second quarter of 2000.
The decrease reflects the reduced amount of gains from the sale of equity
investments from the prior year quarter.
The effective tax rate, excluding non-recurring charges, for the second
quarter of 2001 was 42.8% compared to 40.8% in 2000. The difference between the
effective and statutory rates is primarily due to state and local taxes and
nondeductible goodwill amortization expense.
SIX MONTHS ENDED JUNE 30, 2001 COMPARED TO SIX MONTHS ENDED JUNE 30, 2000
The Company reported a net loss of $138.8 million or $.38 diluted loss per
share for the six months ended June 30, 2001. Excluding the impact of
non-recurring items, which are discussed below, net income was $193.6 million or
$.51 diluted earnings per share, compared to $272.1 million or $.74 diluted
earnings per share for the six months ended June 30, 2000.
The following table sets forth net income and earnings per share before
and after non-recurring items:
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
2001 2000
---- ----
Net income (loss) as reported $(138,829) $216,295
Earnings per share:
Basic (.38) .61
Diluted (.38) .59
Net income before non-recurring items $ 193,642 $272,066
Earnings per share:
Basic .53 .76
Diluted .51 .74
Worldwide revenue for the six months ended June 30, 2001 remained
relatively flat at $3.4 billion compared to the same period in 2000. Domestic
revenue decreased $59 million or 2.9% during the first six months of 2001
compared to 2000. International revenue increased $54 million or 3.9% during the
first six months of 2001 compared to 2000. International revenue would have
increased 13% excluding the effect of the strengthening of the U.S. dollar. The
increase in international revenue, despite the negative impact of foreign
currency translation, was offset by reduced client spending in the U.S.
Organic revenue growth, exclusive of acquisitions and currency effects,
was 1% for the first six months of 2001 compared to the first six months of
2000.
Revenue from specialized marketing and communications services, which
include market research, sales promotion, direct marketing, public relations,
sports and event marketing, healthcare marketing and e-consultancy and services,
comprised approximately 40% of the total worldwide revenue for the six months
ended June 30, 2001, compared to 38% for the first six months of 2000.
Worldwide operating expenses for the first six months 2001, excluding
non-recurring items were $3.0 billion, an increase of 2.7% over the prior year.
Salaries and related expenses were $2.0 billion or 58% of revenue for the first
six months of 2001 as compared to $1.9 billion or 55.5% of revenue for the first
six months of 2000. Office and general expenses were $947 million for the first
six months of 2001 compared to $969 million for the prior year.
Income from operations, excluding non-recurring items, was $400 million
for the first six months of 2001, compared to $482 million for the first six
months of 2000, a decrease of 17%. Exclusive of acquisitions, currency effects
and amortization of intangible assets, income from operations decreased 16% for
the first six months of 2001 compared to the first six months of 2000.
13
Interest expense was $79 million for the first six months of 2001,
compared to $50 million for the prior year period. The increase is primarily a
result of higher debt levels.
Other income net was $37 million for the first six months of 2001 compared
$49 million for the first six months of 2000.
The effective tax rate, excluding non-recurring charges, was 42.1%, for
the first six months of 2001 compared to 41.1% for the first six months of 2000.
The difference between the effective and statutory rates is primarily due to
state and local taxes and nondeductible goodwill expense.
NON-RECURRING ITEMS
On June 22, 2001, the Company completed the acquisition of True North
Communications Inc. ("True North") in a stock transaction that has been
accounted for under the pooling of interests method. In connection with the
acquisition, approximately 59 million shares of common stock were issued. The
accompanying financial statements have been restated to include the results of
True North for all periods presented.
Following the completion of the True North acquisition, the Company
initiated a series of operational initiatives focusing on i) the integration of
the True North operations and the identification of synergies and savings, ii)
the realignment of certain Interpublic businesses, and iii) productivity
initiatives to achieve higher operating margins. As a result of the operational
initiatives, the combined Company will be organized into four global operating
divisions. Three of these divisions will provide a full complement of global
marketing services and marketing communication services; McCann-Erickson
WorldGroup, an enhanced FCB Group and a new global marketing resource called The
Partnership. The fourth division, Advanced Marketing Services Group will focus
on expanding the Company's operations in the area of specialized marketing
communications.
In connection with these initiatives, the Company has approved a
wide-ranging restructuring plan that includes severance, lease termination and
other costs. The ultimate amount of the charges expected to be incurred in
connection with the restructuring plan (including the direct costs of the
merger) are estimated to be approximately $500 million. The majority of this
amount is expected to be incurred in the third quarter of 2001 and involves
reducing the workforce by approximately 3,500 personnel and combining or closing
approximately 75 offices worldwide.
In the second quarter of 2001, the Company recognized $51.3 million of
restructuring and other merger related costs in connection with its
restructuring plan. Approximately $32.4 million of this amount relates to
transaction and other costs incurred in connection with the acquisition of True
North. The remaining amount relates largely to the cost of severance actions
incurred due to the expected closure of the True North corporate office.
Approximately 60 True North corporate employees have been notified that they
will be terminated.
Following the completion of the True North acquisition, in connection with
the Company's initiative on realignment of certain Interpublic businesses, the
Company is evaluating the realizability of various assets. In connection with
this review, undiscounted cash flow projections were prepared for certain
investments, and the Company determined that the goodwill attributable to
certain acquisitions was in excess of its estimates of the entities' future
cashflows. As a result, a charge of $221.4 million was recorded in the second
quarter of 2001. The largest component of the goodwill impairment (approximately
$145 million) relates to Capita Technologies, Inc., an Internet services
business. The remaining amount relates principally to several other businesses
including Internet services and healthcare consulting, and an advertising office
in Asia.
During the first quarter of 2001, the Company recorded a $160.1 million
pre-tax charge ($103.7 million net of tax) to recognize the impairment of
investments primarily in publicly traded companies, including marchFIRST, Inc.
(an Internet professional services firm), which had filed for relief under
Chapter 11 of the Federal Bankruptcy Code in April 2001. The impairment charge
adjusts the carrying value of remaining investments to estimated market value
where an "other than temporary" impairment has occurred.
During the second quarter of 2000, the Company recognized pre-tax
restructuring costs of $52.8 million ($35.0 million net of tax) associated with
the restructuring of Lowe Lintas & Partners Worldwide ("Lowe Lintas") and
transaction costs related to the acquisition of NFO. The Lowe Lintas
restructuring was completed by the third quarter of 2000.
LIQUIDITY AND CAPITAL RESOURCES
The ratio of current assets to current liabilities was .93 to 1 at June
30, 2001. Working capital at June 30, 2001 was negative $508 million, a decrease
of $182 million from December 31, 2000. Total debt at June 30, 2001 was $2.7
billion, an increase of $654 million from December 31, 2000. Cash flow from
operations and availability under existing credit
14
facilities will be the Company's primary source of working capital.
Net cash used in operating activities was $326 million for the first six
months of 2001 and net cash provided from operating activities was $32 million
for the first six months of 2000. The principal use of the Company's working
capital is to provide for the operating needs of its advertising agencies, which
include payments for space or time purchased from various media on behalf of its
clients. The Company's practice is to bill and collect from its clients in
sufficient time to pay the amounts due. Other uses of working capital include
the payment of cash dividends, acquisitions and capital expenditures. In
addition, during the first six months of 2001, the Company acquired 2.1 million
shares of its own stock for the purpose of fulfilling the Company's obligations
under its various compensation plans.
On June 26, 2001 the Company entered into a syndicated revolving multi-currency
credit agreement. The credit agreement provides for a 364-day facility under
which $500 million may be borrowed ("New Facility"). The New Facility bears
interest at variable rates based on either Libor or a bank's base rate, at the
Company's option. At June 30, 2001, there were no borrowings outstanding under
the New Facility.
The $375 million, 364-day facility of the credit agreement between the Company
and a syndicate of lenders dated June 27, 2000 terminated on June 26, 2001.
On June 28, 2001, the Company issued $100 million of floating rate notes. The
notes mature on June 28, 2002, and bear interest at a variable rate based on
three months Libor. Interest payments will made quarterly in arrears beginning
in September 2001.
In July 2001, the Company entered into a credit agreement with a group of
lenders. The credit agreement provides for revolving borrowings of up to $750
million which bear interest at variable rates based on Libor or a bank's base
rate, at the Company's option. The facility matures on September 28, 2001, or
earlier, in certain circumstances, including without limitation, receipt by the
Company of at least $375 million in connection with one or more capital raising
transactions. As of August 13, 2001, the Company has not drawn any amounts under
this facility.
OUTLOOK
Interpublic has indicated that its ability to predict revenue levels in 2001 is
poor. Based on current conditions, however, the Company is forecasting flat
revenue in the second half of 2001 and restated earnings per share (exclusive of
one-time charges) of $1.05-$1.15 for the year. The impact of revenue growth is
such that a 1% change in expected annualized revenue in 2001 would generate
approximately 3 cents change in earnings per share for the year.
OTHER MATTERS
BUSINESS COMBINATIONS, GOODWILL AND OTHER INTANGIBLE ASSETS
In June 2001, the Financial Accounting Standards Board issued Statements of
Financial Accounting Standards No. 141, BUSINESS COMBINATIONS, and No. 142,
GOODWILL AND OTHER INTANGIBLE ASSETS, effective for fiscal years beginning after
December 15, 2001 which requires that the purchase method of accounting be used
for all business combination initiated after June 30, 2001. Under the new rules,
goodwill and intangible assets deemed to have indefinite lives will no longer be
amortized but will be subject to annual impairment tests in accordance with the
Statements. Other intangible assets will continue to be amortized over their
useful lives.
The Company will adopt the new rules on accounting for goodwill and other
intangible assets beginning in the first quarter of 2002, however certain
provisions of these standards may also apply to any acquisitions concluded
subsequent to June 30, 2001. During 2002, the Company will perform the first of
the required impairment tests of goodwill and indefinite lived intangible assets
and has not yet determined what the effect of these tests will be on the
earnings and financial position of the Company.
CAUTIONARY STATEMENT
This document contains forward-looking statements. Representatives of
Interpublic may also make forward-looking statements orally from time to time.
Statements that are not historical fact, including statements about
Interpublic's beliefs and expectations, constitute forward-looking statements.
These statements are based on current plans, estimates and projections, and
therefore undue reliance should not be placed on them. Forward-looking
statements speak only as of the date they are made, and Interpublic undertakes
no obligation to update publicly any of them in light of new information or
future events.
Forward-looking statements involve inherent risks and uncertainties.
Interpublic cautions that a number of important factors could cause actual
results to differ materially from those contained in any forward-looking
statement. Such factors include, but are not limited to, those associated with
the effect of national and regional economic conditions, the ability of
Interpublic to attract new clients and retain existing clients, the financial
success of the clients of Interpublic, developments from changes in the
regulatory and legal environment for advertising companies around the world, and
the successful completion and integration of acquisitions which complement and
expand Interpublic's business capabilities.
Another important factor is Interpublic's acquisition strategy. One of
Interpublic's business strategies is to acquire businesses that complement and
expand its current business capabilities. Accordingly, Interpublic is usually
engaged in evaluating potential acquisition candidates. Interpublic is currently
engaged in a number of preliminary discussions that may result in one or more
substantial acquisitions. These acquisition opportunities require
confidentiality and from time to time give rise to bidding scenarios that
require quick responses by Interpublic. Although there is uncertainty that any
of
15
these discussions will result in definitive agreements or the completion of any
transactions, the announcement of any such transaction may lead to increased
volatility in the trading price of the shares of Interpublic.
Moreover, the success of recent or contemplated future acquisitions will
depend on the effective integration of newly acquired businesses into
Interpublic's current activities. Important factors for integration include
realization of anticipated synergies and the ability to retain and attract new
personnel and clients.
Investors should evaluate any statements in light of these important
factors.
CONVERSION TO THE EURO
On January 1, 1999, certain member countries of the European Union
established fixed conversion rates between their existing currencies and the
European Union's common currency (the "Euro"). The Company conducts business in
member countries. The transition period for the introduction of the Euro is
between January 1, 1999, and June 30, 2002. The Company is addressing the issues
involved with the introduction of the Euro. The major important issues facing
the Company include: converting information technology systems, reassessing
currency risk, negotiating and amending contracts, and processing tax and
accounting records.
Based upon progress to date, the Company believes that use of the Euro
will not have a significant impact on the manner in which it conducts its
business affairs and processes its business and accounting records. Accordingly,
conversion to the Euro has not had, and is not expected to have, a material
effect on the Company's financial condition or results of operations.
16
ITEM 3
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company's financial market risk arises from fluctuations in interest
rates and foreign currencies. Most of the Company's debt obligations are at
fixed interest rates. A 10% change in market interest rates would not have a
material effect on the Company's pre-tax earnings, cash flows or fair value. At
June 30, 2001, the Company had an insignificant amount of foreign currency
derivative financial instruments in place. The Company does not hold any
financial instrument for trading purposes.
PART II - OTHER INFORMATION
ITEM 2(c). CHANGES IN SECURITIES
(1) On April 1, 2001, the Registrant issued 6,082 shares of its Common
Stock, par value $.10 per share (the "Interpublic Stock"), and on March 30, 2001
paid $628,000, to the former shareholders of a company acquired in the third
quarter of 1998. This represented a deferred payment of the purchase price. The
shares of Interpublic Stock were valued at $209,000 on the date of issuance.
The shares of Interpublic Stock were issued by the Registrant without
registration in reliance on Section 4(2) under the Securities Act of 1933, as
amended (the "Securities Act"), based on the sophistication of the acquired
company's former stockholders.
(2) On April 2, 2001 the Registrant issued 194,068 of Interpublic Stock,
and paid $2,169,000 to the former shareholders of a company which was acquired
in the second quarter of 1998. This represented a deferred payment of the
purchase price. The shares of Interpublic Stock were valued at $6,507,095 on the
date of issuance.
The shares of Interpublic Stock were issued by the Registrant without
registration in reliance on Section 4(2) under the Securities Act, based on the
sophistication of the acquired company's former stockholders.
(3) On April 5, 2001, the Registrant issued 20,146 shares of Interpublic
Stock and paid $230,000 to the former shareholders of a company which was
acquired in the fourth quarter of 2000. This represented a deferred payment of
the purchase price. The shares of Interpublic Stock were valued at $690,000 on
the date of issuance.
The shares of Interpublic Stock were issued by the Registrant without
registration in an "offshore transaction" and solely to "non-U.S. persons" in
reliance on Rule 903(b)(3) of Regulation S under the Securities Act.
(4) On April 10, 2001, the Registrant issued 16,935 shares of Interpublic
Stock and on May 3, 2001 paid $1,448,174 in cash to the former shareholders of a
company which was acquired in the fourth quarter of 1999. This represented a
deferred payment of the purchase price. The shares of Interpublic Stock were
valued at $596,959 on the date of issuance.
The shares of Interpublic Stock were issued by the Registrant without
registration in an "offshore transaction" and solely to "non-U.S. persons" in
reliance on Rule 903(b)(3) of Regulation S under the Securities Act.
(5) On April 11, 2001, the Registrant issued 28,194 shares of Interpublic
Stock to a former shareholder of a company that was acquired in the fourth
quarter of 1998. This represented a deferred payment of the purchase price. The
shares of Interpublic Stock had a market value of $1,167,000 as of the date of
issuance. The shares of Interpublic Stock were issued by the Registrant without
registration in reliance on Section 4(2) under the Securities Act, based on the
sophistication of the acquired company's former shareholder.
(6) On April 11, 2001, a subsidiary of the Registrant paid $18,505,350 in
cash and the Registrant issued 234,278 shares of Interpublic Stock to a member
of a limited liability company. This payment represented (i) a deferred payment
of the purchase price with respect to 80% of the interests in the company, which
was acquired by the Registrant's subsidiary in the third quarter of 1999, and
(ii) payment for the remaining 20% of the interests in the company. The shares
of Interpublic Stock had a market value of $7,931,722 on the date of issuance.
The shares of Interpublic Stock were issued by the Registrant without
registration in reliance on Section 4(2) under the Securities Act, based on the
17
sophistication of the member.
(7) On April 12, 2001, the Registrant issued 8,376 shares of Interpublic
Stock and on April 26, 2001 paid $1,176,133 in cash to the former shareholders
of a company which was acquired in the third quarter of 1999. This represented a
deferred payment of the purchase price. The shares of Interpublic Stock were
valued at $297,180 on the date of issuance.
The shares of Interpublic Stock were issued by the Registrant without
registration in an "offshore transaction" and solely to "non-U.S. persons" in
reliance on Rule 903(b)(3) of Regulation S under the Securities Act.
(8) On April 16, 2001, the Registrant issued 3,837 shares of Interpublic
Stock and paid $820,000 in cash to the former shareholder of a company which was
acquired in the first quarter of 1998. This represented a deferred payment of
the purchase price. The shares of Interpublic Stock were valued at $132,081 on
the date of issuance.
The shares of Interpublic Stock were issued by the Registrant without
registration in reliance on Section 4(2) under the Securities Act, based on the
sophistication of the acquired company's former stockholder.
(9) On April 17, 2001, the Registrant acquired 100% of the stock of a
company in partial consideration for which the Registrant issued 24,380 shares
of Interpublic Stock to the shareholders of the company. The shares of
Interpublic Stock had a market value of $830,606 as of the date of issuance. The
shares of Interpublic Stock were issued by the Registrant without registration
in an "offshore transaction" and solely to "non-U.S. persons" in reliance on
Rule 903(b)(3) of Regulation S under the Securities Act.
(10) On June 12, 2001 the Board of Directors of the Registrant authorized
the issuance effective March 31, 2001 (the "Effective Date") of 4,841 shares of
Interpublic Stock to the former shareholders of a company which was acquired in
the fourth quarter of 1999. This represented a deferred payment of the purchase
price. The shares of Interpublic Stock were valued at $174,653 on the Effective
Date.
The shares of Interpublic Stock were issued by the Registrant without
registration in an "offshore transaction" and solely to "non-U.S. persons" in
reliance on Rule 903(b)(3) of Regulation S under the Securities Act.
(11) On June 12, 2001 the Board of Directors of the Registrant authorized
the issuance effective March 30, 2001 (the "Effective Date"), of 25,905 shares
of Interpublic Stock to the former shareholders of a company which was acquired
in the fourth quarter of 1998. This represented a deferred payment of the
purchase price. The shares of Interpublic Stock were valued at $934,716 on the
Effective Date.
The shares of Interpublic Stock were issued by the Registrant without
registration in an "offshore transaction" and solely to "non-U.S. persons" in
reliance on Rule 903(b)(3) of Regulation S under the Securities Act.
(12) On June 12, 2001 the Board of Directors of the Registrant authorized
the issuance effective March 31, 2001 (the "Effective Date") of 28,768 shares of
Interpublic Stock to be issued to the former shareholders of a company which was
acquired in the first quarter of 2000. The Registrant also paid the former
shareholders an aggregate of $1,000,000. This represented a deferred payment of
the purchase price. The shares of Interpublic Stock were valued at $1,000,000 on
the Effective Date.
The shares of Interpublic Stock were issued by the Registrant without
registration in reliance on Section 4(2) under the Securities Act, based on the
sophistication of the acquired company's former stockholders.
18
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITIES HOLDERS
(a) This item is answered in respect of the Annual Meeting
of Stockholders held on May 14, 2001 (the "Annual
Meeting").
(b) No response is required to Paragraph (b) because (i)
proxies for the meeting were solicited pursuant to
Regulation 14A under the Securities Exchange Act of
1934, as amended; (ii) there was no solicitation in
opposition to Management's nominees as listed in the
proxy statement; and (iii) all such nominees were
elected.
(c) At the Annual Meeting, the following number of shares
were cast with respect to each matter voted upon:
-- Proposal to approve Management's nominees for director
as follows:
BROKER
NOMINEE FOR WITHHELD NONVOTES
- ------- --- -------- --------
Frank J. Borelli 258,277,070 2,890,899 0
Reginald K. Brack 258,275,967 2,892,002 0
Jill M. Considine 258,275,646 2,892,323 0
John J. Dooner, Jr. 258,274,383 2,893,586 0
Richard A. Goldstein 258,255,052 2,912,917 0
James R. Heekin III 258,298,444 2,869,525 0
Frank B. Lowe 204,716,816 56,451,153 0
Sean F. Orr 258,291,821 2,876,148 0
J. Phillip Samper 258,268,001 2,899,968 0
-- Proposal to approve confirmation of independent
accountants.
BROKER
FOR AGAINST ABSTAIN NONVOTES
- --- ------- ------- --------
258,601,605 1,296,723 1,269,641 0
19
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) EXHIBITS
EXHIBIT NO. DESCRIPTION
- ----------- -----------
4 Indenture, dated as of June 28, 2001 between The Interpublic
Group of Companies, Inc. ("Interpublic") and The Bank of New
York. Pursuant to Sections 601(b)(4)(iii) and (v) of
Regulation S-K, the Indenture is not being filed by the
Registrant in this Report. The Registrant hereby agrees to
furnish a copy of the Indenture to the Securities and
Exchange Commission upon request.
10(a) 364-Day Credit Agreement, dated as of June 26, 2001 among
Interpublic, the Initial Lenders named therein, Citibank,
N.A. as Administrative Agent and Salomon Smith Barney Inc.
as Lead Arranger and Book Manager.
10(b) Amendment No. 1, dated June 26, 2001, to a 5-Year Credit
Agreement among Interpublic, the Initial Lenders named
therein, Citibank, N.A. as Administrative Agent and Salomon
Smith Barney Inc., as Lead Arranger and Book Manager.
10(c) Deferred Compensation Agreement, dated as of June 1, 2001
between Interpublic and Richard A. Goldstein.
10(d) True North Communications Inc. Stock Option Plan,
incorporated herein by reference to Exhibit 4.3 of Post -
Effective Amendment No.1 on Form S-8 To Registration
Statement on Form S-4 (Registration No. 333-59254).
10(e) Bozell, Jacobs, Kenyon & Eckhardt, Inc. Stock Option Plan,
incorporated herein by reference to Exhibit 4.5 of
Post-Effective Amendment No. 1 on Form S-8 To Registrant
Statement on Form S-4 (Registration No. 333-59254).
11 Statement re: Computation of Per Share Earnings.
(a) REPORTS ON FORM 8-K.
The following Reports on Form 8-K were filed during the quarter
ended June 30, 2001:
(1) Report dated April 26, 2001. Item 5 Other Events and Exhibit
99 Press Release.
(2) Report, dated May 9, 2001. Item 5 Other Events.
(3) Report dated May 18, 2001. Item 5 Other Events and Exhibit
99.1 Press Release.
(4) Report, dated June 14, 2001, Item 5 Other Events.
(5) Report, dated June 22, 2001, Item 5 Other Events and Exhibit
99.1 Press Release.
20
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
(Registrant)
Date: August 13, 2001 BY /S/ JOHN J. DOONER, JR.
-------------------------------------
JOHN J. DOONER, JR
Chairman of the Board, President
and Chief Executive Officer
Date: August 13, 2001 BY /S/ DAVID WEATHERSEED
-------------------------------------
DAVID WEATHERSEED
Vice President and Controller
21
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
- ----------- -----------
4 Indenture, dated as of June 28, 2001 between The Interpublic
Group of Companies, Inc. ("Interpublic") and The Bank of New
York. Pursuant to Sections 601(b)(4)(iii) and (v) of
Regulation S-K, the Indenture is not being filed by the
Registrant in this Report. The Registrant hereby agrees to
furnish a copy of the Indenture to the Securities and
Exchange Commission upon request.
10(a) 364-Day Credit Agreement, dated as of June 26, 2001 among
Interpublic, the Initial Lenders named therein, Citibank,
N.A. as Administrative Agent and Salomon Smith Barney Inc.
as Lead Arranger and Book Manager.
10(b) Amendment No. 1, dated July 26, 2001, to a 5-Year Credit
Agreement among Interpublic, the Initial Lenders named
therein, Citibank, N.A. as Administrative Agent and Salomon
Smith Barney Inc., as Lead Arranger and Book Manager.
10(c) Deferred Compensation Agreement, dated as of June 1, 2001
between Interpublic and Richard A. Goldstein.
10(d) True North Communications Inc. Stock Option Plan,
incorporated herein by reference to Exhibit 4.3 of Post -
Effective Amendment No.1 on Form S-8 To Registration
Statement on Form S-4 (Registration No. 333-59254).
10(e) Bozell, Jacobs, Kenyon & Eckhardt, Inc. Stock Option Plan,
incorporated herein by reference to Exhibit 4.5 of
Post-Effective Amendment No. 1 on Form S-8 To Registrant
Statement on Form S-4 (Registration No. 333-59254).
11 Statement re: Computation of Per Share Earnings.
22
EXHIBIT 10(a)
364-DAY CREDIT AGREEMENT
DATED AS OF JUNE 26, 2001
THE INTERPUBLIC GROUP OF COMPANIES, INC., a Delaware corporation
(the "COMPANY"), the banks, financial institutions and other institutional
lenders (the "INITIAL LENDERS") listed on the signature pages hereof, SALOMON
SMITH BARNEY INC., as lead arranger and book manager, and CITIBANK, N.A.
("CITIBANK"), as administrative agent (the "AGENT") for the Lenders (as
hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ADVANCE" means a Revolving Credit Advance or a Competitive Bid
Advance.
"AFFILIATE" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 10% or more of the
Voting Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise.
"AGENT'S ACCOUNT" means (a) in the case of Advances denominated in
Dollars, the account of the Agent maintained by the Agent at Citibank at
its office at 399 Park Avenue, New York, New York 10043, Account No.
36852248, Attention: Bank Loan Syndications, (b) in the case of Advances
denominated in any Committed Currency, the account of the Sub-Agent
designated in writing from time to time by the Agent to the Company and
the Lenders for such purpose and (c) in any such case, such other account
of the Agent as is designated in writing from time to time by the Agent to
the Company and the Lenders for such purpose.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurocurrency Lending Office in the case of a Eurocurrency
Rate Advance and, in the case of a Competitive Bid Advance, the office of
such Lender notified by such Lender to the Agent as its Applicable Lending
Office with respect to such Competitive Bid Advance.
"APPLICABLE MARGIN" means (a) for Base Rate Advances, 0% per annum
and (b) for Eurocurrency Rate Advances, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on such
date as set forth below:
-----------------------------------------------------------------------
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Moody's Base Rate Advances Eurocurrency Rate Advances
-----------------------------------------------------------------------
LEVEL 1
A+/A1 or above 0.00% 0.235%
-----------------------------------------------------------------------
LEVEL 2
A/A2 0.00% 0.320%
-----------------------------------------------------------------------
LEVEL 3
A-/A3 0.00% 0.350%
-----------------------------------------------------------------------
LEVEL 4
BBB+/Baa1 0.00% 0.425%
-----------------------------------------------------------------------
LEVEL 5
Lower than Level 4 0.00% 0.600%
-----------------------------------------------------------------------
"APPLICABLE PERCENTAGE" means, as of any date a percentage per annum
determined by reference to the Public Debt Rating in effect on such date
as set forth below:
--------------------------------------------------
Public Debt Rating Applicable
S&P/Moody's Percentage
--------------------------------------------------
LEVEL 1
A+/A1 or above 0.065%
--------------------------------------------------
LEVEL 2
A/A2 0.080%
--------------------------------------------------
LEVEL 3
A-/A3 0.100%
--------------------------------------------------
LEVEL 4
BBB+/Baa1 0.125%
--------------------------------------------------
LEVEL 5
Lower than Level 4 0.150%
--------------------------------------------------
"APPLICABLE UTILIZATION FEE" means, as of any date that the
aggregate Advances exceeds 50% of the aggregate Commitments, a percentage
per annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
--------------------------------------------------
Public Debt Rating Applicable
S&P/Moody's Utilization Fee
--------------------------------------------------
LEVEL 1
A+/A1 or above 0.050%
--------------------------------------------------
LEVEL 2
A/A2 0.050%
--------------------------------------------------
LEVEL 3
A-/A3 0.050%
--------------------------------------------------
LEVEL 4
BBB+/Baa1 0.075%
--------------------------------------------------
LEVEL 5
Lower than Level 4 0.125%
--------------------------------------------------
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"ASSUMING LENDER" has the meaning specified in Section 2.18(c).
"ASSUMPTION AGREEMENT" has the meaning specified in Section 2.18(c).
"BASE RATE" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time
to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is
no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1%
per annum, PLUS (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates
in the United States for three-month certificates of deposit of
major United States money market banks, such three-week moving
average (adjusted to the basis of a year of 360 days) being
determined weekly on each Monday (or, if such day is not a Business
Day, on the next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of deposit
dealers of recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily percentages
specified during such three-week period by the Board of Governors of
the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement) for
Citibank with respect to liabilities consisting of or including
(among other liabilities) three-month U.S. dollar non-personal time
deposits in the United States, PLUS (iii) the average during such
three-week period of the annual assessment rates estimated by
Citibank for determining the then current annual assessment payable
by Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring U.S. dollar deposits of Citibank in the
United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"BASE RATE ADVANCE" means a Revolving Credit Advance denominated in
Dollars that bears interest as provided in Section 2.07(a)(i).
"BORROWERS" means, collectively, the Company and the Designated
Subsidiaries from time to time.
"BORROWING" means a Revolving Credit Borrowing or a Competitive Bid
Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurocurrency Rate Advances or LIBO
Rate Advances, on which dealings are carried on in the London interbank
market and banks are open for business in London and in the country of
issue of the currency of such Eurocurrency Rate Advance or LIBO Rate
Advance (or, in the case of an Advance denominated in the euro, in
Frankfurt, Germany).
"COMMITMENT" means as to any Lender (a) the Dollar amount set forth
opposite such Lender's name on the signature pages hereof, (b) if such
Lender has become a Lender hereunder pursuant to an Assumption Agreement,
the Dollar amount set forth in such Assumption Agreement or (c) if such
Lender has entered into any Assignment and Acceptance, the Dollar amount
set forth for such Lender in the Register maintained by the Agent pursuant
to Section 9.07(d), as such amount may be reduced pursuant to Section
2.05.
"COMMITTED CURRENCIES" means lawful currency of the United Kingdom
of Great Britain and Northern Ireland, lawful currency of the Federal
Republic of Germany, lawful currency of the Republic of France, lawful
currency of The Swiss Federation, lawful currency of Japan, Euro and any
other currency requested by the applicable Borrower that can be provided
by all Lenders.
"COMPETITIVE BID ADVANCE" means an advance by a Lender to any
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance or a LIBO Rate Advance.
"COMPETITIVE BID BORROWING" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose offer
to make one or more Competitive Bid Advances as part of
such borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.
"COMPETITIVE BID NOTE" means a promissory note of any Borrower
payable to the order of any Lender, in substantially the form of Exhibit
A-2 hereto, evidencing the indebtedness of such Borrower to such Lender
resulting from a Competitive Bid Advance made by such Lender to such
Borrower.
"COMPETITIVE BID REDUCTION" has the meaning specified in Section
2.01.
"CONFIDENTIAL INFORMATION" means information that any Borrower
furnishes to the Agent or any Lender in a writing other than written
information which is on its face publicly available information, but does
not include any such information that is or becomes generally available to
the public or that is or becomes available to the Agent or such Lender
from a source other than a Borrower.
"CONSENTING LENDER" has the meaning specified in Section 2.18(b).
"CONSOLIDATED" refers to the consolidation of accounts in accordance
with GAAP.
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the
Company in its Consolidated financial statements as of such date.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to a conversion
of Revolving Credit Advances of one Type into Revolving Credit Advances of
the other Type pursuant to Section 2.08 or 2.09.
"DEBT" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services (other
than trade payables incurred in the ordinary course of such Person's
business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all obligations of such
Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of
such property), (e) all obligations of such Person as lessee under leases
that have been or should be, in accordance with generally accepted
accounting principles, recorded as capital leases, (f) all obligations,
contingent or otherwise, of such Person in respect of acceptances, letters
of credit or similar extensions of credit, (g) all obligations of such
Person in respect of Hedge Agreements, (h) all Debt of others referred to
in clauses (a) through (g) above or clause (i) below guaranteed directly
or indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (1) to pay or
purchase such Debt or to advance or supply funds for the payment or
purchase of such Debt, (2) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Debt or to assure
the holder of such Debt against loss, (3) to supply funds to or in any
other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received or
such services are rendered) or (4) otherwise to assure a creditor against
loss, and (i) all Debt referred to in clauses (a) through (h) above
secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for
the payment of such Debt; PROVIDED, HOWEVER, that the term "Debt" shall
not include obligations under agreements providing for indemnification,
deferred purchase price payments or similar obligations incurred or
assumed in connection with the acquisition or disposition of assets or
stock, whether by merger or otherwise.
"DEBT FOR BORROWED MONEY" of the Company means, without duplication,
Debt for money borrowed or any capitalized lease obligation, any
obligation under a purchase money mortgage, conditional sale or other
title retention agreement or any obligation under notes payable or drafts
accepted representing extensions of credit, but shall not include Debt
evidenced by the Subordinated Convertible Notes or any Debt in respect of
Hedge Agreements.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"DESIGNATED SUBSIDIARY" means any direct or indirect wholly-owned
Subsidiary of the Company designated for borrowing privileges under this
Agreement pursuant to Section 9.09.
"DESIGNATION AGREEMENT" means, with respect to any Designated
Subsidiary, an agreement in the form of Exhibit E hereto signed by such
Designated Subsidiary and the Company.
"DOLLARS" and the "$" sign each means lawful currency of the United
States of America.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assumption Agreement or the
Assignment and Acceptance pursuant to which it became a Lender, or such
other office of such Lender as such Lender may from time to time specify
to the Company and the Agent.
"EBITDA" means, for any period, net income (or net loss) PLUS the
sum of (a) Interest Expense, (b) income tax expense, (c) depreciation
expense, (d) amortization expense, in each case determined in accordance
with GAAP for such period, (e) restructuring and other merger related
charges, (f) costs related to the acquisition of Deutsch, Inc. and its
Affiliates, (g) investment impairment charges, in the case of (e), (f) and
(g), as recorded in the financial statements of the Company and its
Consolidated Subsidiaries in accordance with GAAP for the fiscal quarters
ended September 30, 2000, December 31, 2000 and March 31, 2001 and (h)
non-recurring charges up to an aggregate amount of $100,000,000, as
recorded in the financial statements of the Company and its Consolidated
Subsidiaries in accordance with GAAP for the six months ended September
30, 2001.
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"ELIGIBLE ASSIGNEE" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any assignment
is effected in accordance with Section 9.07, the Company, such approval
not to be unreasonably withheld or delayed; PROVIDED, HOWEVER, that
neither the Company nor an Affiliate of the Company shall qualify as an
Eligible Assignee.
"EQUIVALENT" in Dollars of any Committed Currency on any date means
the equivalent in Dollars of such Committed Currency determined by using
the quoted spot rate at which the Sub-Agent's principal office in London
offers to exchange Dollars for such Committed Currency in London at
approximately 4:00 P.M. (London time) (unless otherwise indicated by the
terms of this Agreement) on such date as is required pursuant to the terms
of this Agreement, and the "Equivalent" in any Committed Currency of
Dollars means the equivalent in such Committed Currency of Dollars
determined by using the quoted spot rate at which the Sub-Agent's
principal office in London offers to exchange such Committed Currency for
Dollars in London at approximately 4:00 P.M. (London time) (unless
otherwise indicated by the terms of this Agreement) on such date as is
required pursuant to the terms of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV of
ERISA is a member of the Company's controlled group, or under common
control with the Company, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA EVENT" means (a) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, with respect to any Plan unless the
30-day notice requirement with respect to such event has been waived by
the PBGC; (b) the application for a minimum funding waiver with respect to
a Plan; (c) the
provision by the administrator of any Plan of a notice of intent to
terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred to in Section
4041(e) of ERISA); (d) the cessation of operations at a facility of the
Company or any ERISA Affiliate in the circumstances described in Section
4062(e) of ERISA; (e) the withdrawal by the Company or any ERISA Affiliate
from a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for the imposition of a lien under Section 302(f) of ERISA
shall have been met with respect to any Plan; (g) the adoption of an
amendment to a Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"EURIBO RATE" means, for any Interest Period, the rate per annum
appearing on Telerate Markets Page 248 (or on any successor or substitute
page, or any successor to or substitute for Telerate Markets, providing
rate quotations comparable to those currently provided on such page of
Telerate Markets, as determined by the Agent from time to time for
purposes of providing quotations of interest rates applicable to deposits
in Euro by reference to the Banking Federation of the European Union
Settlement Rates for deposits in Euro) at approximately 10:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period,
as the rate for deposits in Euro with a maturity comparable to such
Interest Period or, if for any reason such rate is not available, the
average (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, if such average is not such a multiple) of the respective rates per
annum at which deposits in Euros are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal (x) in the case of Revolving Credit Borrowings, to such Reference
Bank's Eurocurrency Rate Advance comprising part of such Revolving Credit
Borrowing to be outstanding during such Interest Period and for a period
equal to such Interest Period (subject, however, to the provisions of
Section 2.08) or (y) in the case of Competitive Bid Borrowings, to the
amount that would be the Reference Banks' respective ratable shares of
such Borrowing if such Borrowing were to be a Revolving Credit Borrowing
to be outstanding during such Interest Period and for a period equal to
such Interest Period (subject, however, to the provisions of Section
2.08).
"EURO" means the lawful currency of the European Union as
constituted by the Treaty of Rome which established the European
Community, as such treaty may be amended from time to time and as referred
to in the EMU legislation.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"EUROCURRENCY LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Eurocurrency Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement or
the Assignment and Acceptance pursuant to which it became a Lender (or, if
no such office is specified, its Domestic Lending Office), or such other
office of such Lender as such Lender may from time to time specify to the
Company and the Agent.
"EUROCURRENCY RATE" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum obtained
by dividing (a)(i) in the case of any Revolving Credit Borrowing
denominated in Dollars or any Committed Currency other than Euro, the rate
per annum (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum) appearing on Telerate Markets Page 3750 (or any successor page) as
the London interbank offered rate for deposits in Dollars or the
applicable Committed Currency at approximately 11:00 A.M. (London time)
two Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period or, if for any reason such rate is
not available, the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the
respective rates per annum at which deposits in Dollars or the applicable
Committed
Currency are offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London interbank market at
11:00 A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference Bank's
Eurocurrency Rate Advance comprising part of such Revolving Credit
Borrowing to be outstanding during such Interest Period and for a period
equal to such Interest Period (subject, however, to the provisions of
Section 2.08) or (ii) in the case of any Revolving Credit Borrowing
denominated in Euro, the EURIBO Rate by (b) a percentage equal to 100%
minus the Eurocurrency Rate Reserve Percentage for such Interest Period.
"EUROCURRENCY RATE ADVANCE" means a Revolving Credit Advance
denominated in Dollars or a Committed Currency that bears interest as
provided in Section 2.07(a)(ii).
"EUROCURRENCY RATE RESERVE PERCENTAGE" for any Interest Period for
all Eurocurrency Rate Advances or LIBO Rate Advances comprising part of
the same Borrowing means the reserve percentage applicable two Business
Days before the first day of such Interest Period under regulations issued
from time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting
of or including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which the
interest rate on Eurocurrency Rate Advances or LIBO Rate Advances is
determined) having a term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXTENSION DATE" has the meaning specified in Section 2.18(b).
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing selected
by it.
"FIXED RATE ADVANCES" has the meaning specified in Section
2.03(a)(i), which Advances shall be denominated in Dollars or in any
Committed Currency.
"GAAP" has the meaning specified in Section 1.03.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"INFORMATION MEMORANDUM" means the information memorandum dated May
24, 2001 used by the Agent in connection with the syndication of the
Commitments.
"INTEREST EXPENSE" means, for any period, without duplication,
interest expense (including the interest component on obligations under
capitalized leases), whether paid or accrued, on all Debt of the Company
and its Consolidated Subsidiaries for such period, but shall not include
non-cash interest on the Subordinated Convertible Notes.
"INTEREST PERIOD" means, for each Eurocurrency Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO Rate
Advance comprising part of the same Competitive Bid Borrowing, the period
commencing on the date of such Eurocurrency Rate Advance
or LIBO Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurocurrency Rate Advance and ending on the last day of
the period selected by the Borrower requesting such Borrowing pursuant to
the provisions below and, thereafter, with respect to Eurocurrency Rate
Advances, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by such Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, or nine or twelve months if available to all Lenders, as such
Borrower may, upon notice received by the Agent not later than 11:00 A.M.
(New York City time) on the third Business Day prior to the first day of
such Interest Period, select; PROVIDED, HOWEVER, that:
(i) such Borrower may not select any Interest Period that ends
after the Termination Date or, if the Revolving Credit Advances have
been converted to a term loan pursuant to Section 2.06 prior to such
selection, that ends after the Maturity Date;
(ii) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of the
same Competitive Bid Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, PROVIDED, HOWEVER, that, if such extension
would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"LENDERS" means the Initial Lenders, each Assuming Lender that shall
become a party hereto pursuant to Section 2.18 and each Person that shall
become a party hereto pursuant to Section 9.07.
"LIBO RATE" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by dividing
(a)(i) in the case of any Competitive Bid Borrowing denominated in Dollars
or any Committed Currency other than Euro, the rate per annum (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum) appearing on
Telerate Markets Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars or the applicable Committed Currency
at approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest
Period or, if for any reason such rate is not available, the average
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if
such average is not such a multiple) of the respective rates per annum at
which deposits in Dollars or the applicable Committed Currency are offered
by the principal office of each of the Reference Banks in London, England
to prime banks in the London interbank market at 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period in an
amount substantially equal to the amount that would be the Reference
Banks' respective ratable shares of such Borrowing if such Borrowing were
to be a Revolving Credit Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period (subject, however,
to the provisions of Section 2.08) or (ii) in the case of any Competitive
Bid Borrowing denominated in Euro, the EURIBO Rate by (b) a percentage
equal to 100% minus the Eurocurrency Rate Reserve Percentage for such
Interest Period.
"LIBO RATE ADVANCES" means a Competitive Bid Advance denominated in
Dollars or in any
Committed Currency and bearing interest based on the LIBO Rate.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and the assignment of the right to receive income.
"MATERIAL ADVERSE CHANGE" means any material adverse change in the
business, financial condition or results of operations of the Company and
its Consolidated Subsidiaries taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, financial condition or results of operations of the Company and
its Consolidated Subsidiaries taken as a whole, (b) the rights and
remedies of the Agent or any Lender under this Agreement or any Note or
(c) the ability of the Company to perform its obligations under this
Agreement or any Note.
"MATURITY DATE" means the earlier of (a) the first anniversary of
the Termination Date and (b) the date of termination in whole of the
aggregate Commitments pursuant to Section 2.05 or 6.01.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate
is making or accruing an obligation to make contributions, or has within
any of the preceding five plan years made or accrued an obligation to make
contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, subject to Title IV of ERISA that (a) is
maintained for employees of the Company or any ERISA Affiliate and at
least one Person other than the Company and the ERISA Affiliates or (b)
was so maintained and in respect of which the Company or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in the
event such plan has been or were to be terminated.
"NON-CONSENTING LENDER" has the meaning specified in Section
2.18(b).
"NOTE" means a Revolving Credit Note or a Competitive Bid Note.
"NOTICE OF REVOLVING CREDIT BORROWING" has the meaning specified in
Section 2.02(a).
"NOTICE OF COMPETITIVE BID BORROWING" has the meaning specified in
Section 2.03(a).
"PAYMENT OFFICE" means, for any Committed Currency, such office of
Citibank as shall be from time to time selected by the Agent and notified
by the Agent to the Company and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PUBLIC DEBT RATING" means, as of any date, the lowest rating that
has been most recently announced by either S&P or Moody's, as the case may
be, for any class of non-credit enhanced long-term senior unsecured debt
issued by the Company. For purposes of the foregoing, (a) if only one of
S&P and Moody's shall have in effect a Public Debt Rating, the Applicable
Margin, the Applicable Percentage and the Applicable Utilization Fee shall
be determined by reference to the available Public Debt Rating announced
by either S&P or Moody's; (b) if neither S&P nor Moody's shall have in
effect a Public Debt
Rating, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee will be set in accordance with Level 5 under
the definition of "APPLICABLE MARGIN", "APPLICABLE PERCENTAGE" or
"APPLICABLE UTILIZATION FEE", as the case may be; (c) if such ratings
established by S&P and Moody's shall fall within different levels, the
Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee shall be based upon the higher of such ratings, except
that, in the event that the lower of such ratings is more than one level
below the higher of such ratings, the Applicable Margin, the Applicable
Percentage and the Applicable Utilization Fee shall be based upon the
level immediately above the lower of such ratings; (d) if any such rating
established by S&P or Moody's shall be changed, such change shall be
effective as of the date on which such change is first announced publicly
by the rating agency making such change; and (e) if S&P or Moody's shall
change the basis on which ratings are established, each reference to the
Public Debt Rating announced by S&P or Moody's, as the case may be, shall
refer to the then equivalent rating by S&P or Moody's, as the case may be.
"REFERENCE BANKS" means Citibank, HSBC Bank USA and The Chase
Manhattan Bank.
"REGISTER" has the meaning specified in Section 9.07(d).
"REQUIRED LENDERS" means at any time Lenders owed at least a
majority in interest of the then aggregate outstanding principal amount
(based on the Equivalent in Dollars at such time) of the Revolving Credit
Advances, or, if no such principal amount is then outstanding, Lenders
having at least a majority in amount of the Commitments or, if no such
principal amount is then outstanding and the Commitments have been
terminated, Lenders having at least a majority in interest of the then
aggregate outstanding principal amount (based on the Equivalent in Dollars
at such time) of the Competitive Bid Advances.
"REVOLVING CREDIT ADVANCE" means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing and refers to a Base Rate
Advance or a Eurocurrency Rate Advance (each of which shall be a "TYPE" of
Revolving Credit Advance).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
"REVOLVING CREDIT NOTE" means a promissory note of any Borrower
payable to the order of any Lender, delivered pursuant to a request made
under Section 2.16 in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of such Borrower to such Lender
resulting from the Revolving Credit Advances made by such Lender to such
Borrower.
"S&P" means Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, subject to Title IV of ERISA that (a) is
maintained for employees of the Company or any ERISA Affiliate and no
Person other than the Company and the ERISA Affiliates or (b) was so
maintained and in respect of which the Company or any ERISA Affiliate
could have liability under Section 4069 of ERISA in the event such plan
has been or were to be terminated.
"SUB-AGENT" means Citibank International plc.
"SUBORDINATED CONVERTIBLE NOTES" means (a) the 1.80% Convertible
Subordinated Notes due 2004 of the Company issued on September 16, 1997
and (b) the 1.87% Convertible Subordinated Notes due 2006 of the Company
issued on June 1, 1999.
"SUBSIDIARY" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of
such corporation (irrespective of whether at the time capital stock of any
other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (b) the interest in the
capital or profits of such limited liability company, partnership or joint
venture or (c) the beneficial interest in such trust or
estate is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one
or more of such Person's other Subsidiaries.
"TERM LOAN CONVERSION DATE" means the Termination Date on which all
Revolving Credit Advances outstanding on such date are converted into a
term loan pursuant to Section 2.06.
"TERM LOAN ELECTION" has the meaning specified in Section 2.06.
"TERMINATION DATE" means the earlier of (a) June 25, 2002, subject
to the extension thereof pursuant to Section 2.18 and (b) the date of
termination in whole of the Commitments pursuant to Section 2.05 or 6.01;
PROVIDED, HOWEVER, that the Termination Date of any Lender that is a
Non-Consenting Lender to any requested extension pursuant to Section 2.18
shall be the Termination Date in effect immediately prior to the
applicable Extension Date for all purposes of this Agreement.
"VOTING STOCK" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.
SECTION 1.02. COMPUTATION OF TIME PERIODS. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. ACCOUNTING TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE REVOLVING CREDIT ADVANCES. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to any Borrower from time to time on any Business Day during the
period from the Effective Date until the Termination Date in an aggregate amount
(based in respect of any Revolving Credit Advances to be denominated in a
Committed Currency on the Equivalent in Dollars determined on the date of
delivery of the applicable Notice of Revolving Credit Borrowing) for all
Borrowers not to exceed at any time outstanding such Lender's Commitment
PROVIDED that the aggregate amount of the Commitments of the Lenders shall be
deemed used from time to time to the extent of the aggregate amount (based in
respect of any Competitive Bid Advance denominated in a Committed Currency on
the Equivalent in Dollars at such time) of the Competitive Bid Advances then
outstanding and such deemed use of the aggregate amount of the Commitments shall
be allocated among the Lenders ratably according to their respective Commitments
(such deemed use of the aggregate amount of the Commitments being a "COMPETITIVE
BID REDUCTION"). Each Revolving Credit Borrowing shall be in an aggregate amount
of $10,000,000 or an integral multiple of $1,000,000 in excess thereof in the
case of Revolving Credit Advances denominated in Dollars and the Equivalent of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof in the case
of Revolving Credit Advances denominated in any Committed Currency (determined
on the date of the applicable Notice of Revolving Credit Borrowing) and shall
consist of Revolving Credit Advances of the same Type made on the same day by
the Lenders ratably according to their respective Commitments. Within the limits
of each Lender's Commitment, any Borrower may borrow under this Section 2.01,
prepay pursuant to Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. MAKING THE REVOLVING CREDIT ADVANCES. (a) Each
Revolving Credit Borrowing shall be made on notice, given not later than (x)
10:00 A.M. (New York City time) on the second Business Day prior to the date of
the proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars, (y)
4:00 P.M. (London time) on the third Business Day prior to the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in any Committed Currency,
or (z) 12:00 noon (New York City time) on
the date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Base Rate Advances, by any Borrower to the Agent
(and, in the case of a Revolving Credit Borrowing consisting of Eurocurrency
Rate Advances, simultaneously to the Sub-Agent), which shall give to each Lender
prompt notice thereof by telecopier or telex. Each such notice of a Revolving
Credit Borrowing (a "NOTICE OF REVOLVING CREDIT BORROWING") shall be by
telephone, confirmed immediately in writing, or telecopier or telex in
substantially the form of Exhibit B-1 hereto, specifying therein the requested
(i) date of such Revolving Credit Borrowing, (ii) Type of Advances comprising
such Revolving Credit Borrowing, (iii) aggregate amount of such Revolving Credit
Borrowing, and (iv) in the case of a Revolving Credit Borrowing consisting of
Eurocurrency Rate Advances, initial Interest Period and currency for each such
Revolving Credit Advance; PROVIDED, HOWEVER, that if any such notice shall fail
to specify a currency, Dollars shall be deemed to have been specified. Each
Lender shall, before 2:00 P.M. (New York City time) on the date of such
Revolving Credit Borrowing, in the case of a Revolving Credit Borrowing
consisting of Advances denominated in Dollars, and before 11:00 A.M. (London
time) on the date of such Revolving Credit Borrowing, in the case of a Revolving
Credit Borrowing consisting of Eurocurrency Rate Advances denominated in any
Committed Currency, make available for the account of its Applicable Lending
Office to the Agent at the applicable Agent's Account, in same day funds, such
Lender's ratable portion of such Revolving Credit Borrowing. After the Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Agent will make such funds available to the Borrower
requesting the Revolving Credit Borrowing at the Agent's address referred to in
Section 9.02 or, in the case of a Revolving Credit Borrowing in a Committed
Currency, at the applicable Payment Office, as the case may be.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) no Borrower may select Eurocurrency Rate Advances for any
Revolving Credit Borrowing if the aggregate amount of such Revolving Credit
Borrowing is less than $5,000,000 (or the Equivalent thereof in a Committed
Currency) or if the obligation of the Lenders to make Eurocurrency Rate Advances
shall then be suspended pursuant to Section 2.08 or 2.12 and (ii) the
Eurocurrency Rate Advances may not be outstanding as part of more than twenty
separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing of any Borrower shall
be irrevocable and binding on such Borrower. In the case of any Revolving Credit
Borrowing that the related Notice of Revolving Credit Borrowing specifies is to
be comprised of Eurocurrency Rate Advances, the Borrower requesting such
Revolving Credit Borrowing shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of Revolving Credit Borrowing for such
Revolving Credit Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (excluding loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Revolving Credit
Advance to be made by such Lender as part of such Revolving Credit Borrowing
when such Revolving Credit Advance, as a result of such failure, is not made on
such date.
(d) Unless the Agent shall have received notice from a Lender prior
to the time of any Revolving Credit Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such Revolving Credit
Borrowing, the Agent may assume that such Lender has made such portion available
to the Agent on the date of such Revolving Credit Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the Borrower proposing the Revolving Credit
Borrowing on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available to the Agent, such
Lender and such Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to such Borrower until the date such
amount is repaid to the Agent, at (i) in the case of such Borrower, the higher
of (A) the interest rate applicable at the time to Revolving Credit Advances
comprising such Revolving Credit Borrowing and (B) the cost of funds incurred by
the Agent in respect of such amount and (ii) in the case of such Lender, (A) the
Federal Funds Rate in the case of Advances denominated in Dollars or (B) the
cost of funds incurred by the Agent in respect of such amount in the case of
Advances denominated in Committed Currencies. If such Lender shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Revolving Credit Advance as part of such Revolving Credit Borrowing for
purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to be
made by it as part of any
Revolving Credit Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Revolving Credit Advance on the date of such
Revolving Credit Borrowing, but no Lender shall be responsible for the failure
of any other Lender to make the Revolving Credit Advance to be made by such
other Lender on the date of any Revolving Credit Borrowing.
SECTION 2.03. THE COMPETITIVE BID ADVANCES. (a) Each Lender
severally agrees that any Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below; PROVIDED that, following the making of each
Competitive Bid Borrowing, the aggregate amount of the Advances then outstanding
(based in respect of any Advance denominated in a Committed Currency on the
Equivalent in Dollars at the time such Competitive Bid Borrowing is requested)
shall not exceed the aggregate amount of the Commitments of the Lenders
(computed without regard to any Competitive Bid Reduction).
(i) Any Borrower may request a Competitive Bid Borrowing under this
Section 2.03 by delivering to the Agent (and, in the case of a Competitive
Bid Borrowing not consisting of Fixed Rate Advances or LIBO Rate Advances
to be denominated in Dollars, simultaneously to the Sub-Agent), by
telecopier or telex, a notice of a Competitive Bid Borrowing (a "NOTICE OF
COMPETITIVE BID BORROWING"), in substantially the form of Exhibit B-2
hereto, specifying therein the requested (A) date of such proposed
Competitive Bid Borrowing, (B) aggregate amount of such proposed
Competitive Bid Borrowing, (C) interest rate basis and day count
convention to be offered by the Lenders, (D) currency of such proposed
Competitive Bid Borrowing, (E) in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances, Interest Period, or in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances, maturity date
for repayment of each Fixed Rate Advance to be made as part of such
Competitive Bid Borrowing (which maturity date may not be earlier than the
date occurring 30 days after the date of such Competitive Bid Borrowing or
later than the Termination Date), (F) interest payment date or dates
relating thereto, (G) location of such Borrower's account to which funds
are to be advanced and (H) other terms (if any) to be applicable to such
Competitive Bid Borrowing, not later than (w) 10:00 A.M. (New York City
time) at least one Business Day prior to the date of the proposed
Competitive Bid Borrowing, if such Borrower shall specify in the Notice of
Competitive Bid Borrowing that the rates of interest to be offered by the
Lenders shall be fixed rates per annum (the Advances comprising any such
Competitive Bid Borrowing being referred to herein as "FIXED RATE
ADVANCES") and that the Advances comprising such proposed Competitive Bid
Borrowing shall be denominated in Dollars, (x) 10:00 A.M. (New York City
time) at least four Business Days prior to the date of the proposed
Competitive Bid Borrowing, if such Borrower shall specify in the Notice of
Competitive Bid Borrowing that the Advances comprising such Competitive
Bid Borrowing shall be LIBO Rate Advances denominated in Dollars, (y)
10:00 A.M. (London time) at least two Business Days prior to the date of
the proposed Competitive Bid Borrowing, if such Borrower shall specify in
the Notice of Competitive Bid Borrowing that the Advances comprising such
proposed Competitive Bid Borrowing shall be Fixed Rate Advances
denominated in any Committed Currency and (z) 10:00 A.M. (London time) at
least four Business Days prior to the date of the proposed Competitive Bid
Borrowing, if such Borrower shall specify in the Notice of Competitive Bid
Borrowing that the Advances comprising such Competitive Bid Borrowing
shall be LIBO Rate Advances denominated in any Committed Currency. Each
Notice of Competitive Bid Borrowing shall be irrevocable and binding on
such Borrower. Any Notice of Competitive Bid Borrowing by a Designated
Subsidiary shall be given to the Agent (or the Sub-Agent, as the case may
be) from its office in New York, New York on behalf of such Designated
Subsidiary.
(ii) Each Lender may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more Competitive Bid Advances to the
Borrower proposing the Competitive Bid Borrowing as part of such proposed
Competitive Bid Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion, by notifying the Agent or the Sub-Agent, as
the case may be (which shall give prompt notice thereof to such Borrower),
(A) before 9:30 A.M. (New York City time) on the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of Fixed Rate Advances denominated in Dollars, (B) before 10:00
A.M. (New York City time) three Business Days before the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances, denominated in Dollars, (C)
before 12:00 noon (London time) on the
Business Day prior to the date of such proposed Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances denominated in any Committed Currency and (D) before 12:00 noon
(London time) on the third Business Day prior to the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances denominated in any Committed Currency, of
the minimum amount and maximum amount of each Competitive Bid Advance
which such Lender would be willing to make as part of such proposed
Competitive Bid Borrowing (which amounts or the Equivalent thereof in
Dollars, as the case may be, of such proposed Competitive Bid may, subject
to the proviso to the first sentence of this Section 2.03(a), exceed such
Lender's Commitment, if any), the rate or rates of interest therefor and
such Lender's Applicable Lending Office with respect to such Competitive
Bid Advance; PROVIDED that if the Agent in its capacity as a Lender shall,
in its sole discretion, elect to make any such offer, it shall notify such
Borrower of such offer at least 30 minutes before the time and on the date
on which notice of such election is to be given to the Agent or to the
Sub-Agent, as the case may be, by the other Lenders. If any Lender shall
elect not to make such an offer, such Lender shall so notify the Agent
before 10:00 A.M. (New York City time) or the Sub-Agent before 12:00 noon
(London time) on the date on which notice of such election is to be given
to the Agent or to the Sub-Agent, as the case may be, by the other
Lenders, and such Lender shall not be obligated to, and shall not, make
any Competitive Bid Advance as part of such Competitive Bid Borrowing;
PROVIDED that the failure by any Lender to give such notice shall not
cause such Lender to be obligated to make any Competitive Bid Advance as
part of such proposed Competitive Bid Borrowing.
(iii) The Borrower proposing the Competitive Bid Borrowing shall, in
turn, (A) before 10:30 A.M. (New York City time) on the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Advances denominated in Dollars, (B)
before 11:00 A.M. (New York City time) three Business Days before the date
of such proposed Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of LIBO Rate Advances denominated in Dollars, (C)
before 3:00 P.M. (London time) on the Business Day prior to the date of
such proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of either Fixed Rate Advances denominated in any
Committed Currency and (D) before 3:00 P.M. (London time) on the third
Business Day prior to the date of such Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of LIBO Rate Advances
denominated in any Committed Currency, either:
(x) cancel such Competitive Bid Borrowing by giving the Agent
notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole discretion, by
giving notice to the Agent or to the Sub-Agent, as the case may be,
of the amount of each Competitive Bid Advance (which amount shall be
equal to or greater than the minimum amount, and equal to or less
than the maximum amount, notified to such Borrower by the Agent or
the Sub-Agent, as the case may be, on behalf of such Lender for such
Competitive Bid Advance pursuant to paragraph (ii) above) to be made
by each Lender as part of such Competitive Bid Borrowing, and reject
any remaining offers made by Lenders pursuant to paragraph (ii)
above by giving the Agent or the Sub-Agent, as the case may be,
notice to that effect. Such Borrower shall accept the offers made by
any Lender or Lenders to make Competitive Bid Advances in order of
the lowest to the highest rates of interest offered by such Lenders.
If two or more Lenders have offered the same interest rate, the
amount to be borrowed at such interest rate will be allocated among
such Lenders in proportion to the amount that each such Lender
offered at such interest rate.
(iv) If the Borrower proposing the Competitive Bid Borrowing
notifies the Agent or the Sub-Agent, as the case may be, that such
Competitive Bid Borrowing is cancelled pursuant to paragraph (iii)(x)
above, the Agent or the Sub-Agent, as the case may be, shall give prompt
notice thereof to the Lenders and such Competitive Bid Borrowing shall not
be made.
(v) If the Borrower proposing the Competitive Bid Borrowing accepts
one or more of the offers made by any Lender or Lenders pursuant to
paragraph (iii)(y) above, the Agent or the Sub-Agent, as the case may be,
shall in turn promptly notify (A) each Lender that has made an offer as
described in paragraph (ii) above, of the date and aggregate amount of
such Competitive Bid Borrowing and whether or not any offer or offers made
by such Lender pursuant to paragraph (ii) above have been accepted by such
Borrower, (B) each Lender that is to make a Competitive Bid Advance as
part of such Competitive Bid Borrowing, of the amount of each Competitive
Bid Advance to be made by such Lender as part of such Competitive Bid
Borrowing, and (C) each Lender that is to make a Competitive Bid Advance
as part of such Competitive Bid Borrowing, upon receipt, that the Agent or
the Sub-Agent, as the case may be, has received forms of documents
appearing to fulfill the applicable conditions set forth in Article III.
Each Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing shall, before 11:00 A.M. (New York City time),
in the case of Competitive Bid Advances to be denominated in Dollars or
11:00 A.M. (London time), in the case of Competitive Bid Advances to be
denominated in any Committed Currency, on the date of such Competitive Bid
Borrowing specified in the notice received from the Agent or the
Sub-Agent, as the case may be, pursuant to clause (A) of the preceding
sentence or any later time when such Lender shall have received notice
from the Agent or the Sub-Agent, as the case may be pursuant to clause (C)
of the preceding sentence, make available for the account of its
Applicable Lending Office to the Agent (x) in the case of a Competitive
Bid Borrowing denominated in Dollars, at its address referred to in
Section 9.02, in same day funds, such Lender's portion of such Competitive
Bid Borrowing in Dollars and (y) in the case of a Competitive Bid
Borrowing in a Committed Currency, at the Payment Office for such
Committed Currency as shall have been notified by the Agent to the Lenders
prior thereto, in same day funds, such Lender's portion of such
Competitive Bid Borrowing in such Committed Currency. Upon fulfillment of
the applicable conditions set forth in Article III and after receipt by
the Agent of such funds, the Agent will make such funds available to such
Borrower at the location specified by such Borrower in its Notice of
Competitive Bid Borrowing. Promptly after each Competitive Bid Borrowing
the Agent will notify each Lender of the amount of the Competitive Bid
Borrowing, the consequent Competitive Bid Reduction and the dates upon
which such Competitive Bid Reduction commenced and will terminate.
(vi) If the Borrower proposing the Competitive Bid Borrowing
notifies the Agent or the Sub-Agent, as the case may be, that it accepts
one or more of the offers made by any Lender or Lenders pursuant to
paragraph (iii)(y) above, such notice of acceptance shall be irrevocable
and binding on such Borrower. Such Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result of
any failure to fulfill on or before the date specified in the related
Notice of Competitive Bid Borrowing for such Competitive Bid Borrowing the
applicable conditions set forth in Article III, including, without
limitation, any loss (excluding loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by such Lender to fund the Competitive Bid Advance
to be made by such Lender as part of such Competitive Bid Borrowing when
such Competitive Bid Advance, as a result of such failure, is not made on
such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount
of $10,000,000 or an integral multiple of $1,000,000 in excess thereof (or the
Equivalent thereof in any Committed Currency, determined as of the time of the
applicable Notice of Competitive Bid Borrowing) and, following the making of
each Competitive Bid Borrowing, the Borrowers shall be in compliance with the
limitation set forth in the proviso to the first sentence of subsection (a)
above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, any Borrower may from time to time borrow under this Section 2.03,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03, PROVIDED that a Competitive Bid Borrowing shall not be made within
three Business Days of the date of any other Competitive Bid Borrowing.
(d) Each Borrower that has borrowed through a Competitive Bid
Borrowing shall repay to the Agent for the account of each Lender that has made
a Competitive Bid Advance, on the maturity date of each Competitive Bid Advance
(such maturity date being that specified by such Borrower for repayment of such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to
subsection (a)(i) above and provided in the Competitive Bid Note evidencing such
Competitive Bid Advance), the then unpaid principal amount of such Competitive
Bid Advance. No Borrower shall have any right to prepay any principal amount of
any Competitive Bid Advance unless, and then only on the terms, specified by
such Borrower for such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and set
forth in the Competitive Bid Note evidencing such Competitive Bid Advance.
(e) Each Borrower that has borrowed through a Competitive Bid
Borrowing shall pay interest on the unpaid principal amount of each Competitive
Bid Advance from the date of such Competitive Bid Advance to the date the
principal amount of such Competitive Bid Advance is repaid in full, at the rate
of interest for such Competitive Bid Advance specified by the Lender making such
Competitive Bid Advance in its notice with respect thereto delivered pursuant to
subsection (a)(ii) above, payable on the interest payment date or dates
specified by such Borrower for such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above, as provided in the Competitive Bid Note evidencing such Competitive Bid
Advance. Upon the occurrence and during the continuance of an Event of Default
under Section 6.01(a), such Borrower shall pay interest on the amount of unpaid
principal of and interest on each Competitive Bid Advance owing to a Lender,
payable in arrears on the date or dates interest is payable thereon, at a rate
per annum equal at all times to 2% per annum above the rate per annum required
to be paid on such Competitive Bid Advance under the terms of the Competitive
Bid Note evidencing such Competitive Bid Advance unless otherwise agreed in such
Competitive Bid Note.
(f) The indebtedness of any Borrower resulting from each Competitive
Bid Advance made to such Borrower as part of a Competitive Bid Borrowing shall
be evidenced by a separate Competitive Bid Note of such Borrower payable to the
order of the Lender making such Competitive Bid Advance.
SECTION 2.04. FEES. (a) FACILITY FEE. The Company agrees to pay to
the Agent for the account of each Lender a facility fee on the aggregate amount
of such Lender's Commitment from the Effective Date in the case of each Initial
Lender and from the effective date specified in the Assumption Agreement or in
the Assignment and Acceptance pursuant to which it became a Lender in the case
of each other Lender until the Termination Date at a rate per annum equal to the
Applicable Percentage in effect from time to time, payable in arrears quarterly
on the last day of each March, June, September and December, commencing June 30,
2001, and on the Termination Date.
(b) AGENT'S FEES. The Company shall pay to the Agent for its own
account such fees as may from time to time be agreed between the Company and the
Agent.
SECTION 2.05. TERMINATION OR REDUCTION OF THE COMMITMENTS. (a)
OPTIONAL. The Company shall have the right, upon at least three Business Days'
notice to the Agent, to permanently terminate in whole or reduce ratably in part
the unused portions of the respective Commitments of the Lenders, PROVIDED that
each partial reduction shall be in the aggregate amount of $10,000,000 or an
integral multiple of $1,000,000 in excess thereof and PROVIDED FURTHER that the
aggregate amount of the Commitments of the Lenders shall not be reduced to an
amount that is less than the aggregate principal amount of the Competitive Bid
Advances denominated in Dollars then outstanding plus the Equivalent in Dollars
(determined as of the date of the notice of prepayment) of the aggregate
principal amount of the Competitive Bid Advances denominated in Committed
Currencies then outstanding.
(b) MANDATORY. On the Termination Date, if the Company has made the
Term Loan Election in accordance with Section 2.06 prior to such date, and from
time to time thereafter upon each prepayment of the Revolving Credit Advances,
the Commitments of the Lenders shall be automatically and permanently reduced on
a pro rata basis by an amount equal to the amount by which (i) the aggregate
Commitments immediately prior to such reduction EXCEEDS (ii) the aggregate
unpaid principal amount of all Revolving Credit Advances outstanding at such
time.
SECTION 2.06. REPAYMENT OF REVOLVING CREDIT ADVANCES. Each Borrower
shall, subject to the next succeeding sentence, repay to the Agent for the
ratable account of the Lenders on the Termination Date the aggregate principal
amount of the Revolving Credit Advances then outstanding. The Company may, upon
not less than 15 days' notice to the Agent, elect (the "TERM LOAN ELECTION") to
convert all of the Revolving Credit Advances outstanding on the Termination Date
in effect at such time into a term loan which the Borrowers shall repay in full
ratably to the Lenders on the Maturity Date; PROVIDED that the Term Loan
Election may not be exercised if a Default has occurred and is continuing on the
date of notice of the Term Loan Election or on such Termination Date. All
Revolving Credit Advances converted into a term loan pursuant to this Section
2.06 shall continue to constitute Revolving Credit Advances except that the
Borrowers may not reborrow pursuant to Section 2.01 after all or any portion of
such Revolving Credit Advances have been prepaid pursuant to Section 2.10.
SECTION 2.07. INTEREST ON REVOLVING CREDIT ADVANCES. (a) SCHEDULED
INTEREST. Each Borrower shall pay interest on the unpaid principal amount of
each Revolving Credit Advance made to it and owing to each Lender from the date
of such Revolving Credit Advance until such principal amount shall be paid in
full, at the following rates per annum:
(i) BASE RATE ADVANCES. During such periods as such Revolving Credit
Advance is a Base Rate Advance, a rate per annum equal at all times to the
sum of (x) the Base Rate in effect from time to time PLUS (y) the
Applicable Margin in effect from time to time PLUS (z) the Applicable
Utilization Fee, if any, in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) EUROCURRENCY RATE ADVANCES. During such periods as such
Revolving Credit Advance is a Eurocurrency Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving Credit
Advance to the sum of (x) the Eurocurrency Rate for such Interest Period
for such Revolving Credit Advance PLUS (y) the Applicable Margin in effect
from time to time PLUS (z) the Applicable Utilization Fee, if any, in
effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more than
three months, on each day that occurs during such Interest Period every
three months from the first day of such Interest Period and on the date
such Eurocurrency Rate Advance shall be Converted or paid in full.
(b) DEFAULT INTEREST. Upon the occurrence and during the continuance
of an Event of Default under Section 6.01(a), the Borrowers shall pay interest
on (i) the unpaid principal amount of each Revolving Credit Advance owing to
each Lender, payable in arrears on the dates referred to in clause (a)(i) or
(a)(ii) above, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on such Revolving Credit Advance pursuant to
clause (a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law,
the amount of any interest, fee or other amount payable hereunder that is not
paid when due, from the date such amount shall be due until such amount shall be
paid in full, payable in arrears on the date such amount shall be paid in full
and on demand, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on Base Rate Advances pursuant to clause
(a)(i) above.
SECTION 2.08. INTEREST RATE DETERMINATION. (a) Each Reference Bank
agrees to furnish to the Agent timely information for the purpose of determining
each Eurocurrency Rate and each LIBO Rate. If any one or more of the Reference
Banks shall not furnish such timely information to the Agent for the purpose of
determining any such interest rate, the Agent shall determine such interest rate
on the basis of timely information furnished by the remaining Reference Banks.
The Agent shall give prompt notice to the Company and the Lenders of the
applicable interest rate determined by the Agent for purposes of Section
2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference Bank for
the purpose of determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the Required
Lenders notify the Agent that (i) they are unable to obtain matching deposits in
the London inter-bank market at or about 11:00 A.M. (London time) on the second
Business Day before the making of a Borrowing in sufficient amounts to fund
their respective Revolving Credit Advances as a part of such Borrowing during
its Interest Period or (ii) the Eurocurrency Rate for any Interest Period for
such Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurocurrency Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Company and the
Lenders, whereupon (A) the Borrower of such Eurocurrency Advances will, on the
last day of the then existing Interest Period therefor, (1) if such Eurocurrency
Rate Advances are denominated in Dollars, either (x) prepay such Advances or (y)
Convert such Advances into Base Rate Advances and (2) if such Eurocurrency Rate
Advances are denominated in any Committed Currency, either (x) prepay such
Advances or (y) redenominate such Advances into an Equivalent amount of Dollars
and Convert such Advances into Base Rate Advances and (B) the obligation of the
Lenders to make, or to Convert Revolving Credit Advances into,
Eurocurrency Rate Advances shall be suspended until the Agent shall notify the
Company and the Lenders that the circumstances causing such suspension no longer
exist.
(c) If any Borrower shall fail to select the duration of any
Interest Period for any Eurocurrency Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify such Borrower and the Lenders and such Advances
will automatically, on the last day of the then existing Interest Period
therefor, (i) if such Eurocurrency Rate Advances are denominated in Dollars,
Convert into Base Rate Advances and (ii) if such Eurocurrency Rate Advances are
denominated in a Committed Currency, be redenominated into an Equivalent amount
of Dollars and be Converted into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $5,000,000 (or the Equivalent thereof
in any Committed Currency), such Advances shall automatically Convert into Base
Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default under Section 6.01(a), (i) each Eurocurrency Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
(A) if such Eurocurrency Rate Advance is denominated in Dollars, be Converted
into a Base Rate Advance and (B) if such Eurocurrency Rate Advance is
denominated in any Committed Currency, be redenominated into an Equivalent
amount of Dollars and be Converted into a Base Rate Advance and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurocurrency
Rate Advances shall be suspended.
(f) If Telerate Markets Page 3750 is unavailable and fewer than two
Reference Banks furnish timely information to the Agent for determining the
Eurocurrency Rate or LIBO Rate for any Eurocurrency Rate Advances or LIBO Rate
Advances, as the case may be,
(i) the Agent shall forthwith notify the Company and the Lenders
that the interest rate cannot be determined for such Eurocurrency Rate
Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurocurrency Rate Advances, each such Advance
will automatically, on the last day of the then existing Interest Period
therefor, (A) if such Eurocurrency Rate Advance is denominated in Dollars,
be prepaid by the applicable Borrower or be automatically Converted into a
Base Rate Advance and (B) if such Eurocurrency Rate Advance is denominated
in any Committed Currency, be prepaid by the applicable Borrower or be
automatically redenominated into an Equivalent amount of Dollars and be
Converted into a Base Rate Advance, and
(iii) the obligation of the Lenders to make Eurocurrency Rate
Advances or LIBO Rate Advances or to Convert Base Rate Advances into
Eurocurrency Rate Advances shall be suspended until the Agent shall notify
the Company and the Lenders that the circumstances causing such suspension
no longer exist.
SECTION 2.09. OPTIONAL CONVERSION OF REVOLVING CREDIT ADVANCES. The
Borrower of any Revolving Credit Advance may on any Business Day, upon notice
given to the Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Conversion and subject to the
provisions of Sections 2.08 and 2.12, Convert all Revolving Credit Advances
denominated in Dollars of one Type comprising the same Borrowing into Revolving
Credit Advances denominated in Dollars of the other Type; PROVIDED, HOWEVER,
that any Conversion of Eurocurrency Rate Advances into Base Rate Advances shall
be made only on the last day of an Interest Period for such Eurocurrency Rate
Advances, any Conversion of Base Rate Advances into Eurocurrency Rate Advances
shall be in an amount not less than the minimum amount specified in Section
2.02(b) and no Conversion of any Revolving Credit Advances shall result in more
separate Revolving Credit Borrowings than permitted under Section 2.02(b). Each
such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Dollar denominated Revolving
Credit Advances to be Converted, and (iii) if such Conversion is into
Eurocurrency Rate Advances, the duration of the initial Interest Period for each
such Advance. Each notice of Conversion shall be irrevocable and binding on the
Borrower giving such notice.
SECTION 2.10. PREPAYMENTS OF REVOLVING CREDIT ADVANCES. (a)
OPTIONAL. Each Borrower may, upon notice at least one Business Day prior to the
date of such prepayment, in the case of Eurocurrency Rate Advances, and not
later than 11:00 A.M. (New York City time) on the date of such prepayment, in
the case of Base Rate Advances, to the Agent stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given such
Borrower shall, prepay the outstanding principal amount of the Revolving Credit
Advances comprising part of the same Revolving Credit Borrowing in whole or
ratably in part, together with accrued interest to the date of such prepayment
on the principal amount prepaid; PROVIDED, HOWEVER, that (x) each partial
prepayment shall be in an aggregate principal amount of $10,000,000 or an
integral multiple of $1,000,000 in excess thereof in the case of Revolving
Credit Advances denominated in Dollars and the Equivalent of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof in the case of Revolving
Credit Advances denominated in any Committed Currencies (determined on the date
notice of prepayment is given) and (y) in the event of any such prepayment of a
Eurocurrency Rate Advance, such Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 9.04(c).
(b) MANDATORY PREPAYMENTS. (i) If the Agent notifies the Company on
the second Business Day prior to any interest payment date that the sum of (A)
the aggregate principal amount of all Advances denominated in Dollars then
outstanding plus (B) the Equivalent in Dollars (both (A) and (B) determined on
the third Business Day prior to such interest payment date) of the aggregate
principal amount of all Advances denominated in Committed Currencies then
outstanding exceeds 103% of the aggregate Commitments of the Lenders on such
date, the Borrowers shall, within two Business Days after receipt of such
notice, prepay the outstanding principal amount of any Advances owing by the
Borrowers in an aggregate amount sufficient to reduce such sum after such
payment to an amount not to exceed 100% of the aggregate Commitments of the
Lenders. The Agent shall provide such notice to the Company at the request of
any Lender.
(ii) Each prepayment made pursuant to this Section 2.10(b) shall be
made together with any interest accrued to the date of such prepayment on
the principal amounts prepaid and, in the case of any prepayment of a
Eurocurrency Rate Advance or a LIBO Rate Advance on a date other than the
last day of an Interest Period or at its maturity, any additional amounts
which the Borrowers shall be obligated to reimburse to the Lenders in
respect thereof pursuant to Section 9.04(c). The Agent shall give prompt
notice of any prepayment required under this Section 2.10(b) to the
Company and the Lenders.
SECTION 2.11. INCREASED COSTS. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority including, without limitation, any agency
of the European Union or similar monetary or multinational authority (whether or
not having the force of law), there shall be any increase in the cost to any
Lender of agreeing to make or making, funding or maintaining Eurocurrency Rate
Advances or LIBO Rate Advances (excluding for purposes of this Section 2.11 any
such increased costs resulting from (i) Taxes or Other Taxes (as to which
Section 2.14 shall govern) and (ii) changes in the basis of taxation of overall
net income or overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender is organized or has
its Applicable Lending Office or any political subdivision thereof), then the
Company shall from time to time, upon demand by such Lender (with a copy of such
demand to the Agent), pay to the Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased cost. A
certificate as to the amount of such increased cost, submitted to the Company
and the Agent by such Lender, shall constitute prima facie evidence of such
amounts.
(b) If any Lender determines that due to the introduction of or any
change in or in the interpretation of any law or regulation or any guideline or
request from any central bank or other governmental authority (whether or not
having the force of law), taking into consideration the policies of such Lender
and any corporation controlling such Lender with respect to capital adequacy,
increases or would increase the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and that
the amount of such increase is based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type and the effect
of such increase is to reduce the rate of return on such Lender's capital or on
the capital of the corporation controlling such Lender, then, upon demand by
such Lender (with a copy of such demand to the Agent), the Company shall pay to
the Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such
Lender's commitment to lend hereunder. A certificate as to such amounts
submitted to the Company and the Agent by such Lender shall constitute prima
facie evidence of such amounts.
SECTION 2.12. ILLEGALITY. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Agent that the introduction of or
any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurocurrency Lending Office to perform its
obligations hereunder to make Eurocurrency Rate Advances in Dollars or any
Committed Currency or LIBO Rate Advances in Dollars or any Committed Currency or
to fund or maintain Eurocurrency Rate Advances in Dollars or any Committed
Currency or LIBO Rate Advances in Dollars or any Committed Currency hereunder,
(a) each Eurocurrency Rate Advance or LIBO Rate Advance, as the case may be,
will automatically, upon such demand, (i) if such Eurocurrency Rate Advance or
LIBO Rate Advance is denominated in Dollars, be Converted into a Base Rate
Advance or an Advance that bears interest at the rate set forth in Section
2.07(a)(i), as the case may be, and (ii) if such Eurocurrency Rate Advance or
LIBO Rate Advance is denominated in any Committed Currency, be redenominated
into an Equivalent amount of Dollars and be Converted into a Base Rate Advance
or an Advance that bears interest at the rate set forth in Section 2.07(a)(i),
as the case may be, and (b) the obligation of the Lenders to make Eurocurrency
Rate Advances or LIBO Rate Advances or to Convert Revolving Credit Advances into
Eurocurrency Rate Advances shall be suspended until the Agent shall notify the
Company and the Lenders that the circumstances causing such suspension no longer
exist.
SECTION 2.13. PAYMENTS AND COMPUTATIONS. (a) Each Borrower shall
make each payment hereunder, except with respect to principal of, interest on,
and other amounts relating to, Advances denominated in a Committed Currency, not
later than 11:00 A.M. (New York City time) on the day when due in Dollars to the
Agent at the applicable Agent's Account in same day funds and without deduction,
set off or counterclaim. Each Borrower shall make each payment hereunder with
respect to principal of, interest on, and other amounts relating to, Advances
denominated in a Committed Currency, not later than 11:00 A.M. (at the Payment
Office for such Committed Currency) on the day when due in such Committed
Currency to the Agent, by deposit of such funds to the applicable Agent's
Account in same day funds. The Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or
facility fees ratably (other than amounts payable pursuant to Section 2.03,
2.11, 2.14 or 9.04(c)) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of any other
amount payable to any Lender to such Lender for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon any Assuming Lender becoming a Lender hereunder as a result of
an extension of the Termination Date pursuant to Section 2.18, and upon the
Agent's receipt of such Lender's Assumption Agreement and recording of the
information contained therein in the Register, from and after the applicable
Extension Date the Agent shall make all payments hereunder and under any Notes
issued in connection therewith in respect of the interest assumed thereby to the
Assuming Lender. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(c), from and after the effective date specified in such Assignment
and Acceptance, the Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) All computations of interest based on the Base Rate shall be
made by the Agent on the basis of a year of 365 or 366 days, as the case may be,
all computations of interest based on the Eurocurrency Rate or the Federal Funds
Rate and of facility fees shall be made by the Agent on the basis of a year of
360 days and computations in respect of Competitive Bid Advances shall be made
by the Agent or the Sub-Agent, as the case may be, as specified in the
applicable Notice of Competitive Bid Borrowing (or, in each case of Advances
denominated in Committed Currencies where market practice differs, in accordance
with market practice), 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 Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; PROVIDED, HOWEVER, that, if such extension would cause payment
of interest on or principal of Eurocurrency Rate Advances or 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 Agent shall have received notice from any Borrower
prior to the date on which any payment is due to the Lenders hereunder that such
Borrower will not make such payment in full, the Agent may assume that such
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent such Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at (i) the Federal Funds Rate in the case of Advances
denominated in Dollars or (ii) the cost of funds incurred by the Agent in
respect of such amount in the case of Advances denominated in Committed
Currencies.
SECTION 2.14. TAXES. (a) Any and all payments by each Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, EXCLUDING, in the case of each Lender and the Agent, taxes
imposed on its overall net income, and franchise taxes imposed on it in lieu of
net income taxes, by the jurisdiction under the laws of which such Lender or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction
of such Lender's Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "TAXES"). If any Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender or the Agent, (i) the sum payable shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such Lender or
the Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Borrower shall make such
deductions and (iii) such Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Company shall pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "OTHER
TAXES").
(c) Each Borrower shall indemnify each Lender and the Agent for and
hold it harmless against the full amount of Taxes or Other Taxes (including,
without limitation, taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 2.14) imposed on or paid by such Lender or the Agent
(as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This indemnification shall
be made within 30 days from the date such Lender or the Agent (as the case may
be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, each
Borrower shall furnish to the Agent, at its address referred to in Section 9.02,
the original or a certified copy of a receipt evidencing such payment. In the
case of any payment hereunder or under the Notes by or on behalf of such
Borrower through an account or branch outside the United States or by or on
behalf of such Borrower by a payor that is not a United States person, if such
Borrower determines that no Taxes are payable in respect thereof, such Borrower
shall furnish, or shall cause such payor to furnish, to the Agent, at such
address, an opinion of counsel acceptable to the Agent stating that such payment
is exempt from Taxes. For purposes of this subsection (d) and subsection (e),
the terms "UNITED STATES" and "UNITED STATES PERSON" shall have the meanings
specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assumption
Agreement or the Assignment and Acceptance pursuant to which it becomes a Lender
in the case of each other Lender, and from time to time thereafter as requested
in writing by the Company (but only so long as
such Lender remains lawfully able to do so), shall provide each of the Agent and
the Company with two original Internal Revenue Service forms W-8BEN or W-8ECI,
as appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that such Lender is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes. If the form provided by a Lender at the time such Lender
first becomes a party to this Agreement indicates a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be
considered excluded from Taxes unless and until such Lender provides the
appropriate forms certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate only shall be considered excluded from Taxes for periods
governed by such form; PROVIDED, HOWEVER, that, if at the date of the Assignment
and Acceptance pursuant to which a Lender assignee becomes a party to this
Agreement, the Lender assignor was entitled to payments under subsection (a) in
respect of United States withholding tax with respect to interest paid at such
date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender assignee on such date. If any form or document referred to
in this subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required on the
date hereof by Internal Revenue Service form W-8BEN or W-8ECI, that the Lender
reasonably considers to be confidential, the Lender shall give notice thereof to
the Borrowers and shall not be obligated to include in such form or document
such confidential information.
(f) Each Initial Lender hereby confirms as of the Effective Date,
and each other Lender confirms as of the effective date of the Assignment and
Acceptance pursuant to which it becomes a party hereto, in favor of the Agent
that either (i) such Lender is not resident in the United Kingdom and is
beneficially entitled to the Advances and the interest thereon or (ii) it is a
bank as defined for the purposes of Section 349 of the Income and Corporation
Taxes Act of 1988 of the United Kingdom and is beneficially entitled to the
Advances and the interest thereon, and each Lender agrees to notify the Agent if
there is any change in its position from that set forth in this clause (f).
(g) For any period with respect to which a Lender has failed to
provide the Company with the appropriate form described in Section 2.14(e)
(OTHER THAN if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under subsection (e) above), such Lender shall not be
entitled to indemnification under Section 2.14(a) or (c) with respect to Taxes
imposed by the United States by reason of such failure; PROVIDED, HOWEVER, that
should a Lender become subject to Taxes because of its failure to deliver a form
required hereunder, the Company shall take such steps at such Lender's expense
as the Lender shall reasonably request to assist the Lender to recover such
Taxes.
(h) Any Lender claiming any additional amounts payable pursuant to
this Section 2.14 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurocurrency Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.15. SHARING OF PAYMENTS, ETC. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Revolving Credit Advances owing to
it (other than pursuant to Section 2.11, 2.14 or 9.04(c)) in excess of its
ratable share of payments on account of the Revolving Credit Advances obtained
by all the Lenders, such Lender shall forthwith purchase from the other Lenders
such participations in the Revolving Credit Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; PROVIDED, HOWEVER, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. Each Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of
such Borrower in the amount of such participation.
SECTION 2.16. EVIDENCE OF DEBT. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Revolving
Credit Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder in respect of Revolving Credit Advances. Each Borrower agrees that
upon notice by any Lender to such Borrower (with a copy of such notice to the
Agent) to the effect that a Revolving Credit Note is required or appropriate in
order for such Lender to evidence (whether for purposes of pledge, enforcement
or otherwise) the Revolving Credit Advances owing to, or to be made by, such
Lender, such Borrower shall promptly execute and deliver to such Lender a
Revolving Credit Note payable to the order of such Lender in a principal amount
up to the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 9.07(d)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date and amount of
each Borrowing made hereunder, the Type of Advances comprising such Borrowing
and, if appropriate, the Interest Period applicable thereto, (ii) the terms of
each Assumption Agreement and each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due and payable or
to become due and payable from each Borrower to each Lender hereunder and (iv)
the amount of any sum received by the Agent from such Borrower hereunder and
each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant to
subsection (b) above, and by each Lender in its account or accounts pursuant to
subsection (a) above, shall be PRIMA FACIE evidence of the amount of principal
and interest due and payable or to become due and payable from each Borrower to,
in the case of the Register, each Lender and, in the case of such account or
accounts, such Lender, under this Agreement, absent manifest error; PROVIDED,
HOWEVER, that the failure of the Agent or such Lender to make an entry, or any
finding that an entry is incorrect, in the Register or such account or accounts
shall not limit or otherwise affect the obligations of any Borrower under this
Agreement.
SECTION 2.17. USE OF PROCEEDS. The proceeds of the Advances shall be
available (and each Borrower agrees that it shall use such proceeds) solely for
general corporate purposes of the Company and its Consolidated Subsidiaries,
including commercial paper backstop and acquisition financing.
SECTION 2.18. EXTENSION OF TERMINATION DATE. (a) Provided that the
Company has not previously made a Term Loan Election pursuant to Section 2.06,
at least 35 days but not more than 45 days prior to the Termination Date, the
Company, by written notice to the Agent, may request an extension of the
Termination Date in effect at such time by 364 days from its then scheduled
expiration. The Agent shall promptly notify each Lender of such request, and
each Lender shall in turn, in its sole discretion, not later than 25 days prior
to the Termination Date, notify the Company and the Agent in writing as to
whether such Lender will consent to such extension. If any Lender shall fail to
notify the Agent and the Company in writing of its consent to any such request
for extension of the Termination Date at least 25 days prior to the Termination
Date, such Lender shall be deemed to be a Non-Consenting Lender with respect to
such request. The Agent shall notify the Company on the next succeeding Business
Day of the decision of the Lenders regarding the Company's request for an
extension of the Termination Date.
(b) If all the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.18, the Termination Date in
effect at such time shall, effective as at the Termination Date (the "EXTENSION
DATE"), be extended for 364 days; PROVIDED that on each Extension Date the
applicable conditions set forth in Article III shall be satisfied. If less than
all of the Lenders consent in writing to any such request in accordance with
subsection (a) of this Section 2.18, the Termination Date in effect at such time
shall, effective as at the applicable Extension Date and subject to subsection
(d) of this Section 2.18, be extended as to those Lenders that so consented
(each a "CONSENTING LENDER") but shall not be extended as to any other Lender
(each a "NON-CONSENTING LENDER"). To the extent that the Termination Date is not
extended as to any Lender pursuant to this Section 2.18 and the Commitment of
such Lender is not assumed in accordance with subsection (c) of this Section
2.18 on or prior to the applicable Extension Date, the Commitment of such
Non-Consenting Lender shall automatically terminate in whole on such unextended
Termination Date without any further notice or other action by the Company, such
Lender or any other Person; PROVIDED that such Non-Consenting Lender's rights
under Sections 2.11, 2.14 and 9.04, and its obligations under Section 8.05,
shall survive the Termination Date for such Lender as to matters occurring prior
to such date. It is understood and agreed that no Lender shall have any
obligation whatsoever
to agree to any request made by the Company for any requested extension of the
Termination Date.
(c) If less than all of the Lenders consent to any such request
pursuant to subsection (a) of this Section 2.18, the Agent shall promptly so
notify the Consenting Lenders, and each Consenting Lender may, in its sole
discretion, give written notice to the Agent not later than 10 days prior to the
Termination Date of the amount of the Non-Consenting Lenders' Commitments for
which it is willing to accept an assignment. If the Consenting Lenders notify
the Agent that they are willing to accept assignments of Commitments in an
aggregate amount that exceeds the amount of the Commitments of the
Non-Consenting Lenders, such Commitments shall be allocated among the Consenting
Lenders willing to accept such assignments in such amounts as are agreed between
the Company and the Agent. If after giving effect to the assignments of
Commitments described above there remain any Commitments of Non-Consenting
Lenders, the Company may arrange for one or more Consenting Lenders or other
Eligible Assignees (each, an "ASSUMING LENDER") to assume, effective as of the
Extension Date, any Non-Consenting Lender's Commitment and all of the
obligations of such Non-Consenting Lender under this Agreement thereafter
arising, without recourse to or warranty by, or expense to, such Non-Consenting
Lender; PROVIDED, HOWEVER, that the amount of the Commitment of any such
Assuming Lender as a result of such substitution shall in no event be less than
$10,000,000 unless the amount of the Commitment of such Non-Consenting Lender is
less than $10,000,000, in which case such Assuming Lender shall assume all of
such lesser amount; and PROVIDED FURTHER that:
(i) any such Consenting Lender or Assuming Lender shall have paid to
such Non-Consenting Lender (A) the aggregate principal amount of, and any
interest accrued and unpaid to the effective date of the assignment on,
the outstanding Advances, if any, of such Non-Consenting Lender PLUS (B)
any accrued but unpaid facility fees owing to such Non-Consenting Lender
as of the effective date of such assignment;
(ii) all additional costs reimbursements, expense reimbursements and
indemnities payable to such Non-Consenting Lender, and all other accrued
and unpaid amounts owing to such Non-Consenting Lender hereunder, as of
the effective date of such assignment shall have been paid to such
Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 9.07(a) for such
assignment shall have been paid;
PROVIDED FURTHER that such Non-Consenting Lender's rights under Sections 2.11,
2.14 and 9.04, and its obligations under Section 8.05, shall survive such
substitution as to matters occurring prior to the date of substitution. At least
three Business Days prior to any Extension Date, (A) each such Assuming Lender,
if any, shall have delivered to the Company and the Agent an agreement in form
and substance reasonably satisfactory to the Agent and the Company (each, an
"ASSUMPTION AGREEMENT"), duly executed by such Assuming Lender, such
Non-Consenting Lender, the Company and the Agent, (B) any such Consenting Lender
shall have delivered confirmation in writing satisfactory to the Company and the
Agent as to the increase in the amount of its Commitment and (C) each
Non-Consenting Lender being replaced pursuant to this Section 2.18 shall have
delivered to the Agent any Note or Notes held by such Non-Consenting Lender.
Upon the payment or prepayment of all amounts referred to in clauses (i), (ii)
and (iii) above, each such Consenting Lender or Assuming Lender, as of the
Extension Date, will be substituted for such Non-Consenting Lender under this
Agreement and shall be a Lender for all purposes of this Agreement, without any
further acknowledgment by or the consent of the other Lenders, and the
obligations of each such Non-Consenting Lender hereunder shall, by the
provisions hereof, be released and discharged.
(d) If (after giving effect to any assignments or assumptions
pursuant to subsection (c) of this Section 2.18) Lenders having Commitments
equal to at least 50% of the Commitments in effect immediately prior to the
Extension Date consent in writing to a requested extension (whether by execution
or delivery of an Assumption Agreement or otherwise) not later than one Business
Day prior to such Extension Date, the Agent shall so notify the Company, and,
subject to the satisfaction of the applicable conditions in Article III, the
Termination Date then in effect shall be extended for the additional 364-day
period as described in subsection (a) of this Section 2.18, and all references
in this Agreement, and in the Notes, if any, to the "TERMINATION DATE" shall,
with respect to each Consenting Lender and each Assuming Lender for such
Extension Date, refer to the Termination Date as so extended. Promptly following
each Extension Date, the Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) of the extension of the scheduled Termination
Date in effect immediately prior
thereto and shall thereupon record in the Register the relevant information with
respect to each such Consenting Lender and each such Assuming Lender.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. CONDITIONS PRECEDENT TO EFFECTIVENESS OF SECTIONS 2.01
AND 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and
as of the first date (the "EFFECTIVE DATE") on which the following conditions
precedent to the initial Advance by any Lender have been satisfied:
(a) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Company or any of its Consolidated Subsidiaries
pending or threatened before any court, governmental agency or arbitrator
that (i) could be reasonably likely to have a Material Adverse Effect or
(ii) purports to affect the legality, validity or enforceability of this
Agreement or any Note or the consummation of the transactions contemplated
hereby.
(b) Nothing shall have come to the attention of the Lenders during
the course of their due diligence investigation to lead them to believe
that the Information Memorandum was or has become misleading, incorrect or
incomplete in any material respect; without limiting the generality of the
foregoing, each Lender shall have been given such access to the
management, records, books of account, contracts and properties of the
Company and its Consolidated Subsidiaries as it shall have reasonably
requested as a basis for making its decision to enter into its commitment
hereunder.
(c) All governmental and third party consents and approvals
necessary in connection with the transactions by the Company contemplated
hereby shall have been obtained (without the imposition of any conditions
that are not acceptable to the Lenders) and shall remain in effect, and no
law or regulation shall be applicable in the reasonable judgment of the
Lenders that restrains, prevents or imposes materially adverse conditions
upon the transactions contemplated hereby.
(d) The Company shall have notified the Agent in writing as to the
proposed Effective Date.
(e) The Company shall have paid all accrued fees and expenses of the
Agent and the Lenders (including the invoiced accrued fees and expenses of
counsel to the Agent).
(f) On the Effective Date, the following statements shall be true
and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Company, dated the
Effective Date, stating that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes
a Default.
(g) The Agent shall have received on or before the Effective Date
the following, each dated the Effective Date, in form and substance
satisfactory to the Agent and (except for the Revolving Credit Notes) in
sufficient copies for each Lender:
(i) The Revolving Credit Notes of the Company to the order of
the Lenders to the extent requested by any Lender pursuant to
Section 2.16.
(ii) Certified copies of the resolutions of the Finance
Committee of the Board of Directors of the Company approving this
Agreement and the Notes to be delivered by it, and of all documents
evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement and the Notes to
be delivered by it.
(iii) A certificate of the Secretary or an Assistant Secretary
of the Company certifying the names and true signatures of the
officers of the Company authorized to sign this Agreement and the
Notes to be delivered by it and the other documents to be delivered
by it hereunder.
(iv) A favorable opinion of Nicholas J. Camera, General
Counsel of the Company, and of Cleary, Gottlieb, Steen & Hamilton,
counsel for the Company, substantially in the form of Exhibits D-2
and D-1 hereto, respectively.
(v) A favorable opinion of Shearman & Sterling, counsel for
the Agent, in form and substance satisfactory to the Agent.
(h) The termination of the commitments of the Lenders and the
payment in full of all Debt outstanding under the 364-Day Credit Agreement
dated as of June 27, 2000 among the Company, the lenders parties thereto
and Citibank, N.A., as administrative agent; each Lender that is a party
to the foregoing Credit Agreement, by execution of this Agreement, hereby
waives the requirement of three Business Days' notice set forth in Section
2.05 of such Credit Agreement for the termination of its commitments
thereunder.
SECTION 3.02. INITIAL ADVANCE TO EACH DESIGNATED SUBSIDIARY. The
obligation of each Lender to make an initial Advance to each Designated
Subsidiary is subject to the receipt by the Agent on or before the date of such
initial Advance of each of the following, in form and substance reasonably
satisfactory to the Agent and dated such date, and (except for the Revolving
Credit Notes) in sufficient copies for each Lender:
(a) The Revolving Credit Notes of such Designated Subsidiary to the
order of the Lenders to the extent requested by any Lender pursuant to
Section 2.16.
(b) Certified copies of the resolutions of the Board of Directors of
such Designated Subsidiary (with a certified English translation if the
original thereof is not in English) approving this Agreement and the Notes
to be delivered by it, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to this
Agreement.
(c) A certificate of a proper officer of such Designated Subsidiary
certifying the names and true signatures of the officers of such
Designated Subsidiary authorized to sign its Designation Agreement and the
Notes to be delivered by it and the other documents to be delivered by it
hereunder.
(d) A certificate signed by a duly authorized officer of the
Company, certifying that such Designated Subsidiary has obtained all
governmental and third party authorizations, consents, approvals
(including exchange control approvals) and licenses required under
applicable laws and regulations necessary for such Designated Subsidiary
to execute and deliver its Designation Agreement and the Notes to be
delivered by it and to perform its obligations hereunder and thereunder.
(e) A Designation Agreement duly executed by such Designated
Subsidiary and the Company.
(f) Favorable opinions of counsel (which may be in-house counsel) to
such Designated Subsidiary substantially in the form of Exhibits D-1 and
D-2 hereto, respectively, and as to such other matters as any Lender
through the Agent may request.
(g) Such other approvals, opinions or documents as any Lender,
through the Agent may reasonably request.
SECTION 3.03. CONDITIONS PRECEDENT TO EACH REVOLVING CREDIT
BORROWING AND EXTENSION DATE. The obligation of each Lender to make a Revolving
Credit Advance on the occasion of each Revolving Credit Borrowing and each
extension of Commitments pursuant to Section 2.18 shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date
of such Revolving Credit Borrowing or the applicable Extension Date the
following statements shall be true (and each of the giving of the applicable
Notice of Revolving Credit Borrowing or request for Commitment extension and the
acceptance by any Borrower of the proceeds of such Revolving Credit Borrowing
shall constitute a representation and warranty by such Borrower that on the date
of such Borrowing or such Extension Date, as the case may be, such statements
are true):
(a) the representations and warranties contained in Section 4.01
(except, in the case of Revolving Credit Borrowings, the representation
set forth in the last sentence of subsection (e) thereof) and, in the case
of any Revolving Credit Borrowing made to a Designated Subsidiary, in the
Designation Agreement for such Designated Subsidiary, are correct on and
as of such date, before and after giving effect to such Revolving Credit
Borrowing or such Extension Date and to the application of the proceeds
therefrom, as though made on and as of such date, and
(b) no event has occurred and is continuing, or would result from
such Revolving Credit Borrowing or such Extension Date or from the
application of the proceeds therefrom, that constitutes a Default.
SECTION 3.04. CONDITIONS PRECEDENT TO EACH COMPETITIVE BID
BORROWING. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (i) the Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto, (ii) on
or before the date of such Competitive Bid Borrowing, but prior to such
Competitive Bid Borrowing, the Agent shall have received a Competitive Bid Note
payable to the order of such Lender for each of the one or more Competitive Bid
Advances to be made by such Lender as part of such Competitive Bid Borrowing, in
a principal amount equal to the principal amount of the Competitive Bid Advance
to be evidenced thereby and otherwise on such terms as were agreed to for such
Competitive Bid Advance in accordance with Section 2.03, and (iii) on the date
of such Competitive Bid Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of Competitive Bid Borrowing and the
acceptance by the Borrower requesting such Competitive Bid Borrowing of the
proceeds of such Competitive Bid Borrowing shall constitute a representation and
warranty by such Borrower that on the date of such Competitive Bid Borrowing
such statements are true):
(a) the representations and warranties contained in Section 4.01
(except the representation set forth in the last sentence of subsection
(e) thereof) and, in the case of any Competitive Bid Borrowing made to a
Designated Subsidiary, in the Designation Agreement for such Designated
Subsidiary, are correct on and as of the date of such Competitive Bid
Borrowing, before and after giving effect to such Competitive Bid
Borrowing and to the application of the proceeds therefrom, as though made
on and as of such date, and
(b) no event has occurred and is continuing, or would result from
such Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
SECTION 3.05. DETERMINATIONS UNDER SECTION 3.01 AND 3.02. For
purposes of determining compliance with the conditions specified in Sections
3.01 and 3.02, each Lender shall be deemed to have consented to, approved or
accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to
the Lenders unless an officer of the Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Lender prior
to the date that the Company, by notice to the Agent, designates as the proposed
Effective Date or the date of the initial Advance to the applicable Designated
Subsidiary, as the case may be, specifying its objection thereto. The Agent
shall promptly notify the Lenders of the occurrence of the Effective Date and
each date of initial Advance to a Designated Subsidiary, as applicable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants as follows:
(a) The Company is a corporation duly organized, incorporated,
validly existing and in good standing under the laws of the State of
Delaware, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business.
(b) The execution, delivery and performance by the Company of this
Agreement and the Notes to be delivered by it, and the consummation of the
transactions contemplated hereby, are within the Company's corporate
powers, have been duly authorized by all necessary corporate action, and
do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation of the
Company or of any judgment, injunction, order, decree, material agreement
or other instrument binding upon the Company or result in the creation or
imposition of any Lien on any asset of the Company or any of its
Consolidated Subsidiaries.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any
other third party is required for the due execution, delivery and
performance by the Company of this Agreement or the Notes to be delivered
by it.
(d) This Agreement has been, and each of the Notes to be delivered
by it when delivered hereunder will have been, duly executed and delivered
by the Company. This Agreement is, and each of the Notes to be delivered
by it when delivered hereunder will be, the legal, valid and binding
obligation of the Company enforceable against the Company in accordance
with their respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the rights of creditors
generally and subject to general principles of equity.
(e) The Consolidated balance sheet of the Company and its
Consolidated Subsidiaries as at December 31, 2000, and the related
Consolidated statements of income and cash flows of the Company and its
Consolidated Subsidiaries for the fiscal year then ended, accompanied by
an opinion of PricewaterhouseCoopers LLP, independent public accountants,
and the Consolidated balance sheet of the Company and its Consolidated
Subsidiaries as at March 31, 2001, and the related Consolidated statements
of income and cash flows of the Company and its Consolidated Subsidiaries
for the three months then ended, duly certified by the chief financial
officer or chief accounting officer of the Company, copies of which have
been furnished to each Lender, fairly present, subject, in the case of
said balance sheet as at March 31, 2001, and said statements of income and
cash flows for the three months then ended, to the absence of footnotes
and year-end audit adjustments, the Consolidated financial condition of
the Company and its Consolidated Subsidiaries as at such dates and the
Consolidated results of the operations of the Company and its Consolidated
Subsidiaries for the periods ended on such dates, all in accordance with
generally accepted accounting principles consistently applied. Since
December 31, 2000, there has been no Material Adverse Change.
(f) There is no action, suit, investigation, litigation or
proceeding pending against, or to the knowledge of the Company, threatened
against the Company or any of its Consolidated Subsidiaries before any
court or arbitrator or any governmental body, agency or official in which
there is a significant probability of an adverse decision that (i) would
have a Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(g) Each of the Company and its ERISA Affiliates has fulfilled its
obligations under the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and
the Internal Revenue Code except when the failure to comply would not have
a Material Adverse Effect. None of the Company or any of its ERISA
Affiliates has incurred any unsatisfied material liability to the PBGC or
a Plan under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA.
(h) The Company is not engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the meaning
of Regulation U issued by the Board of Governors of the Federal Reserve
System). Following the application of the proceeds of each Advance, not
more than 25% of the value of the property and assets of the Company and
its Consolidated Subsidiaries taken as a whole, subject to the provisions
of Section 5.02(a) or subject to any restriction contained in any
agreement or instrument between the Company and any Lender or any
Affiliate of any Lender relating to Debt within the scope of Section
6.01(d) will be "margin stock" (within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System).
i) The Company is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(j) The Company and its Consolidated Subsidiaries have filed all
United States Federal income tax returns and all other material tax
returns which are required to be filed by them and have paid all taxes due
reported on such returns or pursuant to any assessment received by the
Company or any Consolidated Subsidiary, to the extent that such assessment
has become due. The charges, accruals and reserves on the books of the
Company and its Consolidated Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Company, adequate except
for those which are being contested in good faith by the Company.
(k) Each of the Company's Consolidated Subsidiaries is a corporation
duly organized, validly existing and in good standing under the laws of
its jurisdiction of incorporation, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals
required to carry on its business, all to the extent material to the
Company and its Consolidated Subsidiaries taken as a whole.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will:
(a) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Consolidated Subsidiaries to comply with all applicable laws, rules,
regulations and orders, such compliance to include, without limitation,
compliance with ERISA and applicable environmental laws, except where the
necessity of compliance is being contested in good faith or where failure
to comply would not have a Material Adverse Effect.
(b) PAYMENT OF TAXES, ETC. Pay and discharge, and cause each of its
Consolidated Subsidiaries to pay and discharge, before the same shall
become delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might solely by operation of law become a Lien upon its
property; PROVIDED, HOWEVER, that neither the Company nor any of its
Consolidated Subsidiaries shall be required to pay or discharge any such
tax, assessment, levy, charge or claim that is being contested in good
faith and by proper proceedings and as to which appropriate reserves in
accordance with generally accepted accounting principles are being
maintained, unless and until any Lien resulting therefrom attaches to its
property and becomes enforceable against its other creditors.
(c) MAINTENANCE OF INSURANCE. Maintain, and cause each of its
Consolidated Subsidiaries to maintain, all to the extent material to the
Company and its Consolidated Subsidiaries taken as a whole, with
responsible and reputable insurance companies or associations, physical
damage insurance on all real and personal property on an all risks basis,
covering the repair and replacement cost of all such property and
consequential loss coverage for business interruption and extra expense,
public liability insurance in an amount not less than $25,000,000 and such
other insurance covering such other risks as is customarily carried by
companies of established reputations engaged in similar businesses and
owning similar properties in the same general areas in which the Company
or such Consolidated Subsidiary operates; PROVIDED, HOWEVER, that the
Company and its Consolidated Subsidiaries may self-insure to the same
extent as other companies engaged in similar businesses and owning similar
properties in the same general areas in which the Company or such
Consolidated Subsidiary operates and to the extent consistent with prudent
business practice.
(d) PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and maintain,
and cause each of its Consolidated Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and franchises
necessary in the normal conduct of its business, all to the extent
material to the Company and its Consolidated Subsidiaries taken as a
whole; PROVIDED, HOWEVER, that the Company and its Consolidated
Subsidiaries may consummate any merger or consolidation permitted under
Section 5.02(b) and PROVIDED FURTHER that neither the Company nor any of
its Consolidated Subsidiaries shall be required to preserve any right or
franchise if the Board of Directors of the Company or such Consolidated
Subsidiary shall determine that the preservation thereof is no longer
desirable in the normal conduct of the business of the Company or such
Consolidated Subsidiary, as the case may be, and that the loss thereof is
not material to the Company and its Consolidated Subsidiaries taken as a
whole.
(e) VISITATION RIGHTS. At any reasonable time and from time to time,
permit the Agent or any of the Lenders or any agents or representatives
thereof at their own expense, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of, the
Company and any of its Consolidated Subsidiaries, and to discuss the
affairs, finances and accounts of the Company and any of its Consolidated
Subsidiaries with any of their officers and with their independent
certified public accountants, all as often as may reasonably be necessary
to ensure compliance by the Company with its obligations hereunder.
(f) KEEPING OF BOOKS. Keep, and cause each of its Consolidated
Subsidiaries to keep, proper books of record and account, in which full
and correct entries shall be made of all financial transactions and the
assets and business of the Company and each such Consolidated Subsidiary
in accordance with sound business practices and applicable statutory
requirements so as to permit the preparation of the Consolidated financial
statements of the Company and its Consolidated Subsidiaries in accordance
with generally accepted accounting principles in effect from time to time.
(g) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve, and cause
each of its Consolidated Subsidiaries to maintain and preserve, all of its
properties that are used and useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted, except where
the failure to do so would not have a Material Adverse Effect.
(h) REPORTING REQUIREMENTS. Furnish to the Lenders or notify the
Lenders of the availability of:
(i) as soon as available and in any event within 50 days after
the end of each of the first three quarters of each fiscal year of
the Company, the unaudited Consolidated balance sheet of the Company
and its Consolidated Subsidiaries as of the end of such quarter and
unaudited Consolidated statements of income and cash flows of the
Company and its Consolidated Subsidiaries for the period commencing
at the end of the previous fiscal year and ending with the end of
such quarter, duly certified (except for the absence of footnotes
and subject to year-end audit adjustments) by the chief financial
officer of the Company as having been prepared in accordance with
generally accepted accounting principles and a certificate of the
chief financial officer or chief accounting officer of the Company,
which certificate shall include a statement that such officer has no
knowledge, except as specifically stated, of any condition, event or
act which constitutes a Default and setting forth in reasonable
detail the calculations necessary to demonstrate compliance with
Section 5.03 on the date of such balance sheet, PROVIDED that in the
event that generally accepted accounting principles used in the
preparation of such financial statements shall differ from GAAP, the
Company shall also provide, if necessary for the determination of
compliance with Section 5.03, a statement of reconciliation
conforming such financial statements to GAAP;
(ii) as soon as available and in any event within 95 days
after the end of each fiscal year of the Company, a copy of the
audited financial statements for such year for the Company and its
Consolidated Subsidiaries, containing the Consolidated balance sheet
of the Company and its Consolidated Subsidiaries as of the end of
such fiscal year and Consolidated statements of income and cash
flows of the Company and its Consolidated Subsidiaries for such
fiscal year, in each case accompanied by the report thereon of
PricewaterhouseCoopers LLP or other independent public accountants
of nationally recognized standing, together with a certificate of
the chief financial officer or chief accounting officer of the
Company, which certificate shall include a statement that such
officer has no knowledge, except as specifically stated, of any
condition, event or act which constitutes a Default and setting
forth in reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03 on the date of such financial
statements, PROVIDED that in the event that generally accepted
accounting principles used in the preparation of such financial
statements shall differ from GAAP, the Company shall also provide,
if necessary for the determination of compliance with Section 5.03,
a statement of reconciliation conforming such financial statements
to GAAP;
(iii) as soon as possible and in any event within ten days
after the chief executive officer, chief operation officer,
principal financial officer or principal accounting officer of the
Company knows or has reason to know of the occurrence of each
Default continuing on the date of such statement, a statement of
such officer of the Company setting forth details of such Default
and the action that the Company has taken and proposes to take with
respect thereto;
(iv) promptly after the sending or filing thereof, copies of
all quarterly and annual reports and proxy solicitations that the
Company sends to any of its securityholders, and copies of all
reports on form 8-K and registration statements for the public
offering of securities (other than pursuant to employee Plans) that
the Company or any Consolidated Subsidiary files with the Securities
and Exchange Commission;
(v) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Company or any of its Consolidated
Subsidiaries of the type described in Section 4.01(f); and
(vi) such other information respecting the financial condition
or business of the Company or any of its Consolidated Subsidiaries
as any Lender through the Agent may from time to time reasonably
request.
The financial statements required to be delivered pursuant to clauses (i)
and (ii) and the reports required to be delivered pursuant to clause (iv)
of this Section 5.01(h) shall be deemed to have been delivered on the date
on which the Company notifies the Agent, in the case of clauses (i) and
(ii), that the reports on Form 10-K and Form 10-Q, respectively,
containing such financial statements and, in the case of clause (iv), that
such reports have been posted on the SEC's website at www.sec.gov;
PROVIDED that the Company shall deliver paper copies of the reports
(without the exhibits thereto) referred to in clauses (i), (ii) and (iv)
of this Section 5.01(h) to the Agent or any Lender who requests the
Company to deliver such paper copies until written notice to cease
delivering paper copies is given by the Agent or such Lender and PROVIDED,
FURTHER, that in every instance the Company shall provide paper copies of
the certificates required to be delivered in accordance with this Section
5.01(h) until such time as the Agent shall provide the Company notice
otherwise.
SECTION 5.02. NEGATIVE COVENANTS. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will not:
(a) LIENS, ETC. Create or suffer to exist, or permit any of its
Consolidated Subsidiaries to create or suffer to exist, any Lien on or
with respect to any of its assets, whether now owned or hereafter
acquired, other than:
(i) Liens existing on the date hereof;
(ii) any Lien existing on any asset of any corporation at the
time such corporation becomes a Consolidated Subsidiary and not
created in contemplation of such event;
(iii) any Lien on any asset securing Debt incurred or assumed
for the purpose of financing all or any part of the cost of
acquiring such asset, PROVIDED that such Lien attaches to such asset
concurrently with or within 90 days after the acquisition thereof;
(iv) any Lien on any asset of any corporation existing at the
time such corporation is merged into or consolidated with the
Company or a Consolidated Subsidiary and not created in
contemplation of such event;
(v) any Lien existing on any asset prior to the acquisition
thereof by the Company or a Consolidated Subsidiary and not created
in contemplation of such acquisition;
(vi) any Lien created in connection with capitalized lease
obligations, but only to the extent that such Lien encumbers
property financed by such capital lease obligation and the principal
component of such capitalized lease obligation is not increased;
(vii) Liens arising in the ordinary course of its business
which (A) do not secure Debt and (B) do not in the aggregate
materially impair the operation of the business of the Company and
its Consolidated Subsidiaries, taken as a whole;
(viii) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by
any of the foregoing clauses of this Section, PROVIDED that such
Debt is not increased and is not secured by any additional assets;
(ix) Liens securing taxes, assessments, fees or other
governmental charges or levies, Liens securing the claims of
materialmen, mechanics, carriers, landlords, warehousemen and
similar Persons, Liens incurred in the ordinary course of business
in connection with workmen's compensation, unemployment insurance
and other similar laws, Liens to secure surety, appeal and
performance bonds and other similar obligations not incurred in
connection with the borrowing of money, and attachment, judgment and
other similar Liens arising in connection with court proceedings so
long as the enforcement of such Liens is effectively stayed and the
claims secured thereby are being contested in good faith by
appropriate proceedings;
(x) Liens not otherwise permitted by the foregoing clauses of
this Section securing Debt in an aggregate principal amount at any
time outstanding not to exceed 10% of the Consolidated net worth of
the Company and its Consolidated Subsidiaries;
(xi) any Liens on property arising in connection with a
securities repurchase transaction; and
(xii) any legal or contractual right of set-off or any
contractual right to charge the accounts of the Company or any of
its Consolidated Subsidiaries to effect the payment of amounts due
in respect of any Debt or financing arrangement.
(b) MERGERS, ETC. (i) Merge or consolidate with or into any Person
(other than a Consolidated Subsidiary of the Company) except that the
Company may agree to merge or consolidate any Consolidated Subsidiary with
any Person in connection with an acquisition of such Person, (ii) sell,
lease or otherwise transfer (whether in one transaction or a series of
transactions) all or substantially all of the Company's business or assets
(whether now owned or hereafter acquired) to any Person (other than a
Consolidated Subsidiary of the Company) or (iii) permit any Consolidated
Subsidiary to merge or consolidate with or into or transfer (whether in
one transaction or a series of transactions) all or any substantial part
of its assets (whether now owned or hereafter acquired) to any Person
except (x) the Company or another Consolidated Subsidiary of the Company
or to any other Person if the Board of Directors of the Company (or the
finance committee or an officer of the Company duly authorized for such
purpose) determines in good faith that the Consolidated Subsidiary or the
assets of such Consolidated Subsidiary, as the case may be, are not
material to the Company and its Consolidated Subsidiaries taken as a
whole, and (y) any Consolidated Subsidiary may merge with or consolidate
into any Person in connection with an acquisition of such Person,
PROVIDED, in each case, that no Default shall have occurred and be
continuing at the time of such proposed transaction or would result
therefrom.
(c) ACCOUNTING CHANGES. Make or permit, or permit any of its
Consolidated Subsidiaries to make or permit, any change in accounting
policies or reporting practices, except as required or permitted by
generally accepted accounting principles or applicable statutory
requirements.
(d) CHANGE IN NATURE OF BUSINESS. Engage, or permit any Consolidated
Subsidiary to engage, predominantly in any business other than business of
the same general type as conducted on the date hereof by the Company and
its Consolidated Subsidiaries.
SECTION 5.03. FINANCIAL COVENANTS. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will:
(a) INTEREST COVERAGE RATIO. Maintain, as of the end of each fiscal
quarter, a ratio of Consolidated EBITDA of the Company and its
Consolidated Subsidiaries for the four fiscal quarters then ended to
Interest Expense during such period by the Company and its Consolidated
Subsidiaries of not less than 3.5 to 1.
(b) DEBT TO EBITDA RATIO. Maintain, as of the end of each fiscal
quarter, a ratio of Debt for Borrowed Money to Consolidated EBITDA of the
Company and its Consolidated Subsidiaries for the four quarters then ended
of not greater than 3.5 to 1.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) The Company or any other Borrower shall fail to pay any
principal of any Advance when the same becomes due and payable; or the
Company or any other Borrower shall fail to pay any interest on any
Advance or make any other payment of fees or other amounts payable under
this Agreement or any Note within five Business Days after the same
becomes due and payable; or
(b) Any representation or warranty made by the Company or any
Designated Subsidiary (or any of its officers) in any certificate,
financial statement or other document delivered pursuant to this Agreement
shall prove to have been incorrect in any material respect when made; or
(c) (i) The Company shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(e) or (h), 5.02(a), (b) or
(d) or 5.03; (ii) the Company or any other Borrower shall fail to perform
or observe any term, covenant or agreement contained in Section 5.01(d) if
such failure shall remain unremedied for 10 days after written notice
thereof shall have been given to the Company by the Agent or any Lender;
or (iii) the Company or any other Borrower shall fail to perform or
observe any other term, covenant or agreement contained in this Agreement
on its part to be performed or observed if such failure shall remain
unremedied for 30 days after written notice thereof shall have been given
to the Company by the Agent or any Lender; or
(d) The Company or any of its Consolidated Subsidiaries shall fail
to pay any principal of or premium or interest on any Debt (but excluding
Debt outstanding hereunder and Debt owed solely to the Company or to a
Consolidated Subsidiary) of the Company or such Consolidated Subsidiary
(as the case may be), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument creating or
evidencing such Debt; or any other event shall occur or condition shall
exist under any agreement or instrument creating or evidencing any such
Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity
of such Debt; or any such Debt shall be declared to be due and payable, or
required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Debt shall be required to be
made, in each case prior to the stated maturity thereof; PROVIDED that the
aggregate principal amount (or, in the case of any payment default,
failure or other event in respect of a Hedge Agreement, the net amount due
and payable under such Hedge Agreement as of the date of such payment
default, failure or event) of all Debt as to which any such payment
defaults (whether or not at stated maturity thereof), failures or other
events shall have occurred and be continuing exceeds $10,000,000,
PROVIDED, FURTHER, that if any of the actions or events set forth above in
this subsection (d) shall be taken in respect of, or occur with respect
to, a Consolidated Subsidiary, such action or event shall not be the basis
for or give rise to an Event of Default under this subsection (d) until
five Business Days after the chief executive officer, chief operation
officer, principal financial officer or principle accounting officer of
the Company knows or has reason to know of the occurrence of such action
or event if (x) the assets or revenues of such Consolidated Subsidiary and
its Consolidated Subsidiaries, taken as a whole, comprise 5% or less of
the assets or revenues, respectively, of the Company and its Consolidated
Subsidiaries, taken as a whole, and (y) the aggregate assets and revenues
of all Consolidated Subsidiaries otherwise subject to such actions or
events set forth above do not comprise more than 15% of the assets or
revenues, respectively, of the Company and its Consolidated Subsidiaries
taken as a whole; or
(e) The Company or any of its Consolidated Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Company or any of its Consolidated
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding
shall remain undismissed or unstayed for a period of 60 days, or any of
the actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Company or any of
its Consolidated Subsidiaries shall take any corporate action to authorize
any of the actions set forth above in this subsection (e); PROVIDED, that
if any of the actions or events set forth above in this subsection (e)
shall be taken in respect of, or occur with respect to, a Consolidated
Subsidiary, such action or event shall not be the basis for or give rise
to an Event of Default under this subsection (e) if (x) the assets or
revenues of such Consolidated Subsidiary and its Consolidated
Subsidiaries, taken as a whole, comprise 5% or less of the assets or
revenues, respectively, of the Company and its Consolidated Subsidiaries,
taken as a whole, and (y) the aggregate assets and revenues of all
Consolidated Subsidiaries otherwise subject to such actions or events set
forth above do not comprise more than 15% of the assets or revenues,
respectively, of the Company and its Consolidated Subsidiaries taken as a
whole; or
(f) Judgments or orders for the payment of money in excess of
$10,000,000 in the aggregate shall be rendered against the Company or any
of its Consolidated Subsidiaries and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order or
(ii) there shall be any period of 60 consecutive days during which a stay
of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(g) (i) Any Person or two or more Persons acting in concert (other
than the Company or a Consolidated Subsidiary) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities
and Exchange Commission under the Securities Exchange Act of 1934),
directly or indirectly, of Voting Stock of the Company (or other
securities convertible into such Voting Stock) representing 30% or more of
the combined voting power of all Voting Stock of the Company; or (ii)
during any period of up to 24 consecutive months, commencing after the
date of this Agreement, individuals who at the beginning of such period
were directors of the Company shall cease for any reason to constitute a
majority of the board of directors of the Company unless the election or
nomination for election by the Company's stockholders of each new director
was approved by the vote of at least two-thirds of the directors then
still in office who were directors at the beginning of such period; or
(h) The Company or any of its ERISA Affiliates shall incur
liability, or in the case of clause (i) below, shall be reasonably likely
to incur liability, in excess of $10,000,000 in the aggregate as a result
of one or more of the following: (i) the occurrence of any ERISA Event;
(ii) the partial or complete withdrawal of the Company or any of its ERISA
Affiliates from a Multiemployer Plan; or (iii) the reorganization or
termination of a Multiemployer Plan; or
(i) so long as any Consolidated Subsidiary of the Company is a
Designated Subsidiary, any provision of Article VII shall for any reason
cease to be valid and binding on or enforceable against the Company, or
the Company shall so state in writing;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Company and the other
Borrowers, declare the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Company and the other Borrowers, declare the Advances, all interest thereon and
all other amounts payable under this Agreement to be forthwith due and payable,
whereupon the Advances, all such interest and all such amounts shall become and
be forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by each Borrower;
PROVIDED,
HOWEVER, that in the event of an actual or deemed entry of an order for relief
with respect to any Borrower under the Federal Bankruptcy Code, (A) the
obligation of each Lender to make Advances shall automatically be terminated and
(B) the Advances, all such interest and all such amounts shall automatically
become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by each Borrower.
ARTICLE VII
GUARANTY
SECTION 7.01. GUARANTY. The Company hereby absolutely,
unconditionally and irrevocably guarantees, as a guarantee of payment and not of
collection, the punctual payment when due, whether at scheduled maturity or on
any date of a required prepayment or by acceleration, demand or otherwise, of
all obligations of each other Borrower now or hereafter existing under or in
respect of this Agreement and the Notes (including, without limitation, any
extensions, modifications, substitutions, amendments or renewals of any or all
of the foregoing obligations), whether direct or indirect, absolute or
contingent, and whether for principal, interest, premiums, fees, indemnities,
contract causes of action, costs, expenses or otherwise (such obligations being
the "GUARANTEED OBLIGATIONS"), and agrees to pay any and all expenses
(including, without limitation, fees and expenses of counsel) incurred by the
Agent or any other Lender in enforcing any rights under this Article VII.
Without limiting the generality of the foregoing, the Company's liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and
would be owed by any such Borrower to the Agent or any Lender under or in
respect of this Agreement or the Notes but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such Borrower.
SECTION 7.02. GUARANTY ABSOLUTE. The Company guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the Notes, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Lender with respect thereto. The obligations of the Company under
or in respect of this Article VII are independent of the Guaranteed Obligations
or any other obligations of any other Borrower under or in respect of this
Agreement and the Notes, and a separate action or actions may be brought and
prosecuted against the Company to enforce this Article VII, irrespective of
whether any action is brought against any Borrower or whether any Borrower is
joined in any such action or actions. The liability of the Company under this
Article VII shall be irrevocable, absolute and unconditional irrespective of,
and the Company hereby irrevocably waives any defenses it may now have or
hereafter acquire in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement (other
than this Article VII), the Notes or any agreement or instrument relating
thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
obligations of any Borrower under or in respect of this Agreement or the
Notes, or any other amendment or waiver of or any consent to departure
from this Agreement or the Notes, including, without limitation, any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to any Borrower or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of, or consent
to departure from, any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any manner of application of collateral, or proceeds thereof, to
all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Guaranteed Obligations
or any other obligations of any Borrower under this Agreement or the Notes
or any other assets of any Borrower or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Borrower or any of its Subsidiaries;
(f) any failure of any Lender or the Agent to disclose to the
Company any information relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any
Borrower now or hereafter known to such Lender or the Agent (the Company
waiving any duty on the part of the Lenders and the Agent to disclose such
information); or
(g) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by any Lender or the Agent that might otherwise constitute
a defense available to, or a discharge of, any Borrower or any other
guarantor or surety.
This Article VII shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by any Lender or the Agent or any other
Person upon the insolvency, bankruptcy or reorganization of any Borrower or
otherwise, all as though such payment had not been made.
SECTION 7.03. WAIVERS AND ACKNOWLEDGMENTS. (a) The Company hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Article VII and any requirement that
any Lender or the Agent protect, secure, perfect or insure any Lien or any
property subject thereto or exhaust any right or take any action against any
Borrower or any other Person or any collateral.
(b) The Company hereby unconditionally and irrevocably waives any
right to revoke this Article VII and acknowledges that the guaranty under
this Article VII is continuing in nature and applies to all Guaranteed
Obligations, whether existing now or in the future.
(c) The Company hereby unconditionally and irrevocably waives (i)
any defense arising by reason of any claim or defense based upon an
election of remedies by any Lender or the Agent that in any manner
impairs, reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of the
Company or other rights of the Company to proceed against any Borrower,
any other guarantor or any other Person or any collateral and (ii) any
defense based on any right of set-off or counterclaim against or in
respect of the obligations of the Company hereunder.
(d) The Company hereby unconditionally and irrevocably waives any
duty on the part of any Lender or the Agent to disclose to the Company any
matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any
Borrower or any of its Subsidiaries now or hereafter known by such Lender
or the Agent.
(e) The Company acknowledges that it will receive substantial direct
and indirect benefits from the financing arrangements contemplated by this
Agreement and the Notes and that the waivers set forth in Section 7.02 and
this Section 7.03 are knowingly made in contemplation of such benefits.
SECTION 7.04. SUBROGATION. The Company hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against any Borrower or any other insider guarantor that arise from the
existence, payment, performance or enforcement of the Company's Obligations
under or in respect of this Article VII, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of any
Lender or the Agent against any Borrower or any other insider guarantor or any
collateral, whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, including, without limitation, the right to
take or receive from any Borrower or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Article VII shall have been paid in full in cash and the Commitments shall have
expired or been terminated. If any amount shall be paid to the Company in
violation of the immediately preceding sentence at any time prior to the later
of (a) the payment in full in cash of the Guaranteed Obligations and all other
amounts payable under this Article VII and (b) the Termination Date, such amount
shall be
received and held in trust for the benefit of the Lenders and the Agent, shall
be segregated from other property and funds of the Company and shall forthwith
be paid or delivered to the Agent in the same form as so received (with any
necessary endorsement or assignment) to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Article VII,
whether matured or unmatured, in accordance with the terms of this Agreement, or
to be held as collateral for any Guaranteed Obligations or other amounts payable
under this Article VII thereafter arising. If (i) the Company shall make payment
to any Lender or the Agent of all or any part of the Guaranteed Obligations,
(ii) all of the Guaranteed Obligations and all other amounts payable under this
Article VII shall have been paid in full in cash and (iii) the Termination Date
shall have occurred, the Lenders and the Agent will, at the Company's request
and expense, execute and deliver to the Company appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to the Company of an interest in the Guaranteed
Obligations resulting from such payment made by the Company pursuant to this
Article VII.
SECTION 7.05. CONTINUING GUARANTY; ASSIGNMENTS. The guaranty under this
Article VII is a continuing guaranty and shall (a) remain in full force and
effect until the later of (i) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Article VII and (ii) the
Termination Date, (b) be binding upon the Company, its successors and assigns
and (c) inure to the benefit of and be enforceable by the Lenders and the Agent
and their successors, transferees and assigns. Without limiting the generality
of clause (c) of the immediately preceding sentence, any Lender may assign or
otherwise transfer all or any portion of its rights and obligations under this
Agreement (including, without limitation, all or any portion of its Commitments,
the Advances owing to it and the Note or Notes held by it) to any other Person,
and such other Person shall thereupon become vested with all the benefits in
respect thereof granted to such Lender herein or otherwise, in each case as and
to the extent provided in Section 9.07. The Company shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Lenders.
ARTICLE VIII
THE AGENT
SECTION 8.01. AUTHORIZATION AND ACTION. Each Lender hereby appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; PROVIDED, HOWEVER, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by the Company or any other
Borrower pursuant to the terms of this Agreement.
SECTION 8.02. AGENT'S RELIANCE, ETC. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable for any action taken or omitted to
be taken by it or them under or in connection with this Agreement, except for
its or their own gross negligence or willful misconduct. Without limitation of
the generality of the foregoing, the Agent: (i) may treat the Lender that made
any Advance as the holder of the Debt resulting therefrom until the Agent
receives and accepts an Assumption Agreement entered into by an Assuming Lender
as provided in Section 2.18 or an Assignment and Acceptance entered into by such
Lender, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 9.07; (ii) may consult with legal counsel (including counsel for the
Company), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of the Company
or any other Borrower or to inspect the property (including the books and
records) of the Company or any other Borrower; (v) shall not be responsible to
any Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; and (vi) shall incur no liability under or
in respect of this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which
may be by telecopier, telegram or telex) believed by it to be genuine and signed
or sent by the proper party or parties.
SECTION 8.03. CITIBANK AND AFFILIATES. With respect to its
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 Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the Company,
any of its Subsidiaries and any Person who may do business with or own
securities of the Company or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Lenders.
SECTION 8.04. LENDER CREDIT DECISION. Each Lender acknowledges that
it has, independently and without reliance upon the Agent or any other Lender
and based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 8.05. INDEMNIFICATION. The Lenders agree to indemnify the
Agent (to the extent not reimbursed by the Company), ratably according to the
respective principal amounts of the Revolving Credit Advances then owed to each
of them (or if no Revolving Credit Advances 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 that may be imposed on, incurred by, or asserted against the Agent in
any way relating to or arising out of this Agreement or any action taken or
omitted by the Agent under this Agreement (collectively, the "INDEMNIFIED
COSTS"), PROVIDED that no Lender shall be liable for any portion of the
Indemnified Costs resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including reasonable counsel fees) incurred by the Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, to the extent that the Agent is not reimbursed for such expenses
by the Company. In the case of any investigation, litigation or proceeding
giving rise to any Indemnified Costs, this Section 8.05 applies whether any such
investigation, litigation or proceeding is brought by the Agent, any Lender or a
third party.
SECTION 8.06. SUCCESSOR AGENT. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Company and may be removed
at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 8.07. SUB-AGENT. The Sub-Agent has been designated under
this Agreement to carry out duties of the Agent. The Sub-Agent shall be subject
to each of the obligations in this Agreement to be performed by the Sub-Agent,
and each of the Company, each other Borrower and the Lenders agrees that the
Sub-Agent shall be entitled to exercise each of the rights and shall be entitled
to each of the benefits of the Agent under this Agreement as relate to the
performance of its obligations hereunder.
SECTION 8.08. OTHER AGENTS. Each Lender hereby acknowledges that
neither the documentation agent nor any other Lender designated as any "Agent"
(other than the Agent) on the signature pages hereof has any liability hereunder
other than in its capacity as a Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement or the Revolving Credit Notes, nor consent to any
departure by the Company or any other Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Required
Lenders, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; PROVIDED, HOWEVER, that
no amendment, waiver or consent shall, unless in writing and signed by all the
Lenders, do any of the following: (a) waive any of the conditions specified in
Section 3.01 or Section 3.02, (b) except as provided in Section 2.18(c),
increase the Commitments of the Lenders or subject the Lenders to any additional
obligations, (c) reduce the principal of, or interest on, the Revolving Credit
Advances or any fees or other amounts payable hereunder, (d) except as provided
in Section 2.18(b), postpone any date fixed for any payment of principal of, or
interest on, the Revolving Credit Advances or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Revolving Credit Advances, or the number of
Lenders, that shall be required for the Lenders or any of them to take any
action hereunder, (f) reduce or limit the obligations of the Company under
Section 7.01 or release or otherwise limit the Company's liability with respect
to its obligations under Article VII or (g) amend the definition of "Required
Lenders" or this Section 9.01; and PROVIDED FURTHER that (x) no amendment,
waiver or consent shall, unless in writing and signed by the Agent in addition
to the Lenders required above to take such action, affect the rights or duties
of the Agent under this Agreement or any Note and (y) no amendment, waiver or
consent of Section 9.07(f) shall, unless in writing and signed by each Lender
that has granted a funding option to an SPC in addition to the Lenders required
above to take such action, affect the rights or duties of such Lender or SPC
under this Agreement or any Note.
SECTION 9.02. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and mailed, telecopied, telegraphed, telexed or delivered,
if to the Company or any other Borrower, to (or in care of) the Company, at its
address at 1271 Avenue of the Americas, New York, New York 10020, Attention:
Vice President and Treasurer (with a copy at the same address to the Senior Vice
President and General Counsel); if to any Initial Lender, at its Domestic
Lending Office specified opposite its name on Schedule I hereto; if to any other
Lender, at its Domestic Lending Office specified in the Assumption Agreement or
the Assignment and Acceptance pursuant to which it became a Lender; and if to
the Agent, at its address at Two Penns Way, New Castle, Delaware 19720,
Attention: Bank Loan Syndications Department; or, as to the Company or the
Agent, at such other address as shall be designated by such party in a written
notice to the other parties and, as to each other party, at such other address
as shall be designated by such party in a written notice to the Company and the
Agent. All such notices and communications shall, when mailed, telecopied,
telegraphed or telexed, be effective when deposited in the mails, telecopied,
delivered to the telegraph company or confirmed by telex answerback,
respectively, except that notices and communications to the Agent pursuant to
Article II, III or VII shall not be effective until received by the Agent.
Delivery by telecopier of an executed counterpart of any amendment or waiver of
any provision of this Agreement or the Notes or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.
SECTION 9.03. NO WAIVER; REMEDIES. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. COSTS AND EXPENSES. (a) The Company agrees to pay on
demand all reasonable out-of-pocket expenses of the Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and audit expenses
and (B) the reasonable fees and expenses of counsel for the Agent with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities under this Agreement. The Company further agrees to pay on
demand all costs and expenses of the Agent and the Lenders, if any (including,
without limitation, reasonable counsel fees and expenses), in connection with
the enforcement (whether through negotiations, legal proceedings or otherwise)
of this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for the
Agent and each Lender in connection with the enforcement of rights under this
Section 9.04(a).
(b) The Company agrees to indemnify and hold harmless the Agent and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "INDEMNIFIED PARTY") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation or proceeding or preparation of a
defense in connection therewith) the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances, except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 9.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by the Company, its directors, shareholders or creditors
or an Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto. The Company also agrees not to assert any claim for
special, indirect, consequential or punitive damages against the Agent, any
Lender, any of their Affiliates, or any of their respective directors, officers,
employees, attorneys and agents, on any theory of liability, arising out of or
otherwise relating to the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Advances.
(c) If any payment of principal of, or Conversion of, any
Eurocurrency Rate Advance or LIBO Rate Advance is made by any Borrower to or for
the account of a Lender other than on the last day of the Interest Period for
such Advance, as a result of a payment or Conversion pursuant to Section 2.08(d)
or (e), 2.10 or 2.12, acceleration of the maturity of the Notes pursuant to
Section 6.01 or for any other reason, or by an Eligible Assignee to a Lender
other than on the last day of the Interest Period for such Advance upon an
assignment of rights and obligations under this Agreement pursuant to Section
9.07 as a result of a demand by the Company pursuant to Section 9.07(a), such
Borrower shall, upon demand by such Lender (with a copy of such demand to the
Agent), pay to the Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment or Conversion, including, without
limitation, any loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Company and the other Borrowers hereunder, the agreements and obligations of the
Company and the other Borrowers contained in Sections 2.11, 2.14 and 9.04 shall
survive the payment in full of principal, interest and all other amounts payable
hereunder and under the Notes.
SECTION 9.05. RIGHT OF SET-OFF. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Advances due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of the Company or any Borrower
against any and all of the obligations of the Company or any Borrower now or
hereafter existing under this Agreement and any Note held by such Lender,
whether or not such Lender shall have made any demand under this Agreement or
such Note and although such obligations may be unmatured. Each Lender agrees
promptly to notify the appropriate Borrower after any such set-off and
application, PROVIDED that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender and its
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender and
its Affiliates may have.
SECTION 9.06. BINDING EFFECT. This Agreement shall become effective
(other than Sections 2.01 and 2.03, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Company and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of the Company,
the Agent and each Lender and their respective successors and assigns, except
that neither the Company nor any other Borrower shall have the right to assign
its rights hereunder or any interest herein without the prior written consent of
the Lenders.
SECTION 9.07. ASSIGNMENTS AND PARTICIPATIONS. (a) Each Lender may
and, if demanded by the Company (following a demand by such Lender pursuant to
Section 2.11 or 2.14) upon at least 5 Business Days' notice to such Lender and
the Agent, will assign to one or more Persons all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Revolving Credit Advances owing to it and the
Revolving Credit Note or Notes held by it); PROVIDED, HOWEVER, that (i) each
such assignment shall be of a constant, and not a varying, percentage of all
rights and obligations under this Agreement (other than any right to make
Competitive Bid Advances, Competitive Bid Advances owing to it and Competitive
Bid Notes), (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, (iii) each such assignment
shall be to an Eligible Assignee, (iv) each such assignment made as a result of
a demand by the Company pursuant to this Section 9.07(a) shall be arranged by
the Company after consultation with the Agent and shall be either an assignment
of all of the rights and obligations of the assigning Lender under this
Agreement or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that
together cover all of the rights and obligations of the assigning Lender under
this Agreement, (v) no Lender shall be obligated to make any such assignment as
a result of a demand by the Company pursuant to this Section 9.07(a) unless and
until such Lender shall have received one or more payments from either the
Company or one or more Eligible Assignees in an aggregate amount at least equal
to the aggregate outstanding principal amount of the Advances owing to such
Lender, together with accrued interest thereon to the date of payment of such
principal amount and all other amounts payable to such Lender under this
Agreement, and (vi) the parties to each such assignment shall execute and
deliver to the Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Revolving Credit Note subject to
such assignment and a processing and recordation fee of $3,500 payable by the
parties to each such assignment, PROVIDED, HOWEVER, that in the case of each
assignment made as a result of a demand by the Company, such recordation fee
shall be payable by the Company except that no such recordation fee shall be
payable in the case of an assignment made at the request of the Company to an
Eligible Assignee that is an existing Lender, and (vii) any Lender may, without
the approval of the Company or the Agent, assign all or a portion of its rights
to any of its Affiliates or to another Lender unless on the date of such
assignment the assignee would be entitled to make a demand pursuant to Section
2.11 or 2.14, in which case such assignment shall be permitted only if the
assignee shall waive in a manner satisfactory to the Company in form and
substance its rights to make such a demand. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights (other than its rights
under Section 2.11, 2.14 and 9.04 to the extent any claim thereunder relates to
an event arising prior such assignment) and be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the Company
or any other Borrower or the performance or observance by the Company or any
other Borrower of any of its obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Revolving Credit Note or Notes subject to such assignment, the
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Company.
(d) The Agent shall maintain at its address referred to in Section
9.02 a copy of each Assumption Agreement and each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lenders and the Commitment of, and principal amount of the
Advances owing to, each Lender from time to time (the "REGISTER"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Company, the Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Company or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Each Lender may sell participations to one or more banks or
other entities (other than the Company or any of its Affiliates) in or to all or
a portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and any
Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
Company hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Company, the other Borrowers, the Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
(v) no participant under any such participation shall have any rights as a
Lender hereunder, including, without limitation, any right to make any demand
under Section 2.11 or 2.14 or right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by the
Company or any other Borrower therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each case to the extent
subject to such participation, or postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder or reduce or limit the obligations of the Company under Section 7.01
or release or otherwise limit the Company's liability with respect to its
obligations under Article VII or amend this Section 9.07(e) in any manner
adverse to such participant, in each case to the extent subject to such
participation.
(f) Each Lender may grant to a special purpose funding vehicle (an
"SPC") the option to fund all or any part of any Advance that such Lender is
obligated to fund under this Agreement (and upon the exercise by such SPC of
such option to fund, such Lender's obligations with respect to such Advance
shall be deemed satisfied to the extent of any amounts funded by such SPC);
PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Company hereunder) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) each Borrower, the
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, (iv) any such option granted to an SPC shall not constitute a
commitment by such SPC to fund any Advance, (v) neither the grant nor the
exercise of such option to an SPC shall increase the costs or expenses or
otherwise increase or change the obligations of any Borrower under this
Agreement (including, without limitation, its obligations under Section 2.14)
and (vi) no SPC shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by any
Borrower therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such grant of
funding option, or postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such grant
of funding option. Each party to this Agreement hereby agrees that no SPC shall
be liable for any indemnity or payment under this Agreement for which a Lender
would otherwise be liable. In furtherance of the foregoing, each party hereto
hereby agrees (which agreements shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPC, it
will not institute against, or join any other Person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof.
(g) Any Lender may, in connection with any assignment, participation
or grant of funding option or proposed assignment, participation or grant of
funding option pursuant to this Section 9.07, disclose to the assignee,
participant or SPC or proposed assignee, participant or SPC, any information
relating to any Borrower furnished to such Lender by or on behalf of such
Borrower; PROVIDED that, prior to any such disclosure, the assignee, participant
or SPC or proposed assignee, participant or SPC shall agree to preserve the
confidentiality of any Confidential Information relating to any Borrower
received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and any Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 9.08. CONFIDENTIALITY. Neither the Agent nor any Lender or
SPC shall disclose any Confidential Information to any other Person without the
consent of the Company, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and, as
contemplated by Section 9.07(f), to actual or prospective assignees and
participants, and then only on a confidential basis, (b) as required by any law,
rule or regulation or judicial process and (c) as requested or required by any
state, federal or foreign authority or examiner regulating banks or banking.
SECTION 9.09. DESIGNATED SUBSIDIARIES. (a) DESIGNATION. The Company
may at any time, and from time to time, by delivery to the Agent of a
Designation Agreement duly executed by the Company and the respective Subsidiary
and substantially in the form of Exhibit E hereto, designate such Subsidiary as
a "Designated Subsidiary" for purposes of this Agreement and such Subsidiary
shall thereupon become a "Designated Subsidiary" for purposes of this Agreement
and, as such, shall have all of the rights and obligations of a Borrower
hereunder. The Agent shall promptly notify each Lender of each such designation
by the Company and the identity of the respective Subsidiary.
(b) TERMINATION. Upon the payment and performance in full of all of
the indebtedness, liabilities and obligations under this Agreement of any
Designated Subsidiary then, so long as at the time no Notice of Revolving Credit
Borrowing or Notice of Competitive Bid Borrowing in respect of such Designated
Subsidiary is outstanding, such Subsidiary's status as a "Designated Subsidiary"
shall terminate upon notice to such effect from the Agent to the Lenders (which
notice the Agent shall give promptly, and only upon its receipt of a request
therefor from the Company). Thereafter, the Lenders shall be under no further
obligation to make any Advance hereunder to such Designated Subsidiary.
SECTION 9.10. GOVERNING LAW. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 9.11. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.12. JUDGMENT. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder in Dollars
into another currency, the parties hereto agree, to the fullest extent that they
may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase Dollars with
such other currency at Citibank's principal office in London at 11:00 A.M.
(London time) on the Business Day preceding that on which final judgment is
given.
(b) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in a Committed Currency into Dollars,
the parties agree to the fullest extent that they may effectively do so, that
the rate of exchange used shall be that at which in accordance with normal
banking procedures the Agent could purchase such Committed Currency with Dollars
at Citibank's principal office in London at 11:00 A.M. (London time) on the
Business Day preceding that on which final judgment is given.
(c) The obligation of the Company and each other Borrower in respect
of any sum due from it in any currency (the "PRIMARY CURRENCY") to any Lender or
the Agent hereunder shall, notwithstanding any judgment in any other currency,
be discharged only to the extent that on the Business Day following receipt by
such Lender or the Agent (as the case may be), of any sum adjudged to be so due
in such other currency, such Lender or the Agent (as the case may be) may in
accordance with normal banking procedures purchase the applicable Primary
Currency with such other currency; if the amount of the applicable Primary
Currency so purchased is less than such sum due to such Lender or the Agent (as
the case may be) in the applicable Primary Currency, the Company and each other
Borrower agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify such Lender or the Agent (as the case may be) against such loss,
and if the amount of the applicable Primary Currency so purchased exceeds such
sum due to any Lender or the Agent (as the case may be) in the applicable
Primary Currency, such Lender or the Agent (as the case may be) agrees to remit
to the Company or such other Borrower such excess.
SECTION 9.13. JURISDICTION, ETC. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. The Company and each other Borrower hereby further
irrevocably consent to the service of process in any action or proceeding in
such courts by the mailing thereof by any parties hereto by registered or
certified mail, postage prepaid, to the Company at its address specified
pursuant to Section 9.02. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement
or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 9.14. SUBSTITUTION OF CURRENCY. If a change in any Committed
Currency occurs pursuant to any applicable law, rule or regulation of any
governmental, monetary or multi-national authority, this Agreement (including,
without limitation, the definitions of Eurocurrency Rate and LIBO Rate) will be
amended to the extent determined by the Agent (acting reasonably and in
consultation with the Company) to be necessary to reflect the change in currency
and to put the Lenders and the Company in the same position, so far as possible,
that they would have been in if no change in such Committed Currency had
occurred.
SECTION 9.15. WAIVER OF JURY TRIAL. Each of the Company, each other
Borrower, the Agent and the Lenders hereby irrevocably waives all right to trial
by jury in any action, proceeding or counterclaim (whether based on contract,
tort or otherwise) arising out of or relating to this Agreement or the Notes or
the actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE INTERPUBLIC GROUP OF
COMPANIES, INC.
By____________________________
Name:
Title:
CITIBANK, N.A.,
as Agent
By____________________________
Name:
Title:
LEAD ARRANGER
$55,000,000 CITIBANK, N.A.
By____________________________
Name:
Title:
AGENTS
$42,500,000 HSBC BANK USA
By____________________________
Name:
Title:
$42,500,000 THE CHASE MANHATTAN BANK
By____________________________
Name:
Title:
$42,500,000 LLOYDS TSB BANK PLC
By____________________________
Name:
Title:
SENIOR MANAGING AGENT
$35,000,000 FLEET NATIONAL BANK (successor
by merger to Fleet Bank, N.A.)
By____________________________
Name:
Title:
$35,000,000 BANCO BILBAO VIZCAYA
By____________________________
Name:
Title:
LENDERS
$17,500,000 THE BANK OF NEW YORK
By____________________________
Name:
Title:
$20,000,000 THE BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By____________________________
Name:
Title:
$20,000,000 BANCA POPOLAIRE DI BERGAMO
By____________________________
Name:
Title:
$20,000,000 THE NORTHERN TRUST COMPANY
By____________________________
Name:
Title:
$20,000,000 BANK OF AMERICA, N.A.
By____________________________
Name:
Title:
$20,000,000 BARCLAYS BANK PLC
By____________________________
Name:
Title:
$20,000,000 SUNTRUST BANK
By____________________________
Name:
Title:
$20,000,000 ING BANK
By____________________________
Name:
Title:
$20,000,000 KEYBANK NATIONAL ASSOCIATION
By____________________________
Name:
Title:
$15,000,000 ROYAL BANK OF CANADA
By____________________________
Name:
Title:
$20,000,000 WACHOVIA BANK
By____________________________
Name:
Title:
$20,000,000 THE FUJI BANK, LIMITED
By____________________________
Name:
Title:
$15,000,000 WESTPAC
By____________________________
Name:
Title:
$20,000,000 CREDIT AGRICOLE INDO SUEZ
By____________________________
Name:
Title:
$500,000,000 Total of the Commitments
SCHEDULE I
THE INTERPUBLIC GROUP OF COMPANIES, INC.
364-DAY CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
- -------------------------------------------------------------------------------------------------------------------
Name of Initial Lender Domestic Lending Office Eurocurrency Lending Office
- ---------------------- ----------------------- ---------------------------
- -------------------------------------------------------------------------------------------------------------------
Banco Bilbao Vizcaya 1345 Avenue of the Americas 1345 Avenue of the Americas
45th Floor 45th Floor
New York, NY 10105 New York, NY 10105
Attn: Anne-Maureen Sarfati Attn: Anne-Maureen Sarfati
T: 212 728-1654 T: 212 728-1654
F: 212 333-2904 F: 212 333-2904
- -------------------------------------------------------------------------------------------------------------------
Bank of America, N.A. 101 N. Tryon Street, 15th Floor 101 N. Tryon Street, 15th Floor
Charlotte, NC 28255 Charlotte, NC 28255
Attn: Michael Plamice Attn: Michael Plamice
T: 704 386-3781 T: 704 386-3781
F: 704 409-0066 F: 704 409-0066
- -------------------------------------------------------------------------------------------------------------------
The Bank of New York One Wall Street One Wall Street
New York, NY 10286 New York, NY 10286
T: 212 635-1471 T: 212 635-1471
F: 212 635-6397 F: 212 635-6397
- -------------------------------------------------------------------------------------------------------------------
The Bank of Tokyo Mitsubishi Trust 1251 Avenue of the Americas 1251 Avenue of the Americas
Company New York, NY 10020 New York, NY 10020
Attn: Jeffrey Millar Attn: Jeffrey Millar
T: 212 782-4358 T: 212 782-4358
F: 212 782-6445 F: 212 782-6445
- -------------------------------------------------------------------------------------------------------------------
Barclays Bank plc 222 Broadway 222 Broadway
New York, NY 10038 New York, NY 10038
Attn: Christina Challenger-Batiz Attn: Christina Challenger-Batiz
T: 212 412-3701 T: 212 412-3701
F: 212 412-5306 F: 212 412-5306
- -------------------------------------------------------------------------------------------------------------------
Banca Popolare di Bergamo Plazza VittorioVeneto, 8 Plazza VittorioVeneto, 8
24122 Bergamo, Italy 24122 Bergamo, Italy
Attn: F. Nessi Attn: F. Nessi
T: 0039 035 392 568 T: 0039 035 392 568
F: 0039 035 392 393 F: 0039 035 392 393
- -------------------------------------------------------------------------------------------------------------------
Citibank, N.A. Two Penns Way, Suite 200 Two Penns Way, Suite 200
New Castle, DE 19720 New Castle, DE 19720
Attn: May Wong Attn: May Wong
T: 302 894-6015 T: 302 894-6015
F: 302 894-6120 F: 302 894-6120
- -------------------------------------------------------------------------------------------------------------------
Credit Agricole Insosuez 666 Third Avenue, 10th Floor 666 Third Avenue, 10th Floor
New York, NY 10017 New York, NY 10017
Attn: John McCloskey Attn: John McCloskey
T: 212 658-2118 T: 212 658-2118
F: 212 658-2111 F: 212 658-2111
- -------------------------------------------------------------------------------------------------------------------
Fleet Bank, N.A. 1185 Avenue of the Americas 1185 Avenue of the Americas
New York, NY 10036 New York, NY 10036
Attn: Thomas J. Levy Attn: Thomas J. Levy
T: 212 819-5735 T: 212 819-5735
F: 212 819-4120 F: 212 819-4120
- -------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
The Fuji Bank, Limited Two World Trade Center Two World Trade Center
New York, NY 10048 New York, NY 10048
Attn: Betty All Attn: Betty All
T: 212 898-2070 T: 212 898-2070
F: 212 488-8216 F: 212 488-8216
- ----------------------------------------------------------------------------------------------------------------------
HSBC Bank USA 1 HSBC Center 1 HSBC Center
Buffalo, NY 14203 Buffalo, NY 14203
Attn: Donna Reilly Attn: Donna Reilly
T: 716 841-4178 T: 716 841-4178
F: 716 841-0269 F: 716 841-0269
- ----------------------------------------------------------------------------------------------------------------------
ING Capital LLC 55 East 52nd Street 55 East 52nd Street
New York, NY 10055 New York, NY 10055
Attn: Lisa Cummings Attn: Lisa Cummings
T: 212 409-1676 T: 212 409-1676
F: 212 409-7808 F: 212 409-7808
- ----------------------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank 4 Chase Metrotech Center 4 Chase Metrotech Center
15th Floor 15th Floor
Brooklyn, NY 11245 Brooklyn, NY 11245
Attn: Marcia Green-Alleyne Attn: Marcia Green-Alleyne
T: 718 242-8064 T: 718 242-8064
F: 718 242-6550 F: 718 242-6550
- ----------------------------------------------------------------------------------------------------------------------
KeyBank National Association 127 Public Square 127 Public Square
Cleveland, OH 94111 Cleveland, OH 94111
Attn: Dan Lally Attn: Dan Lally
T: 216 689-8065 T: 216 689-8065
F: 216689-4981 F: 216689-4981
- ----------------------------------------------------------------------------------------------------------------------
Lloyds TSB Bank PLC Lloyds TSB Bank plc Miami Lloyds TSB Bank plc Miami
One Biscayne Tower Suite 3200 One Biscayne Tower Suite 3200
2 South Biscayne Boulevard 2 South Biscayne Boulevard
Miami, FL 33131 Miami, FL 33131
Attn: Patricia Kilian Attn: Patricia Kilian
- ----------------------------------------------------------------------------------------------------------------------
The Northern Trust Company 50 S. LaSalle Street 50 S. LaSalle Street
Chicago, IL 60675 Chicago, IL 60675
Attn: Linda Honda Attn: Linda Honda
T: 312 444-3532 T: 312 444-3532
F: 312 630-1566 F: 312 630-1566
- ----------------------------------------------------------------------------------------------------------------------
Royal Bank of Canada Royal Bank of Canada Royal Bank of Canada
New York Branch New York Branch
One Liberty Plaza, 3rd Floor One Liberty Plaza, 3rd Floor
New York, NY 10006-1404 New York, NY 10006-1404
Attn: Manager, Loans Administration Attn: Manager, Loans Administration
T: 212 428-6322 T: 212 428-6322
F: 212 428-2372 F: 212 428-2372
With a copy to: With a copy to:
Attn: N.G. Millar Attn: N.G. Millar
T: 212 428-6363 T: 212 428-6363
F: 212 809-7148 F: 212 809-7148
- ----------------------------------------------------------------------------------------------------------------------
Suntrust Bank 25 Park Place, 21st Floor 25 Park Place, 21st Floor
Center 1927 Center 1927
Atlanta, GA 30303 Atlanta, GA 30303
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
Wachovia Bank 191 Peachtree Street 191 Peachtree Street
M/C GA380 M/C GA380
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Trudy Collins Attn: Trudy Collins
T: 404 332-6688 T: 404 332-6688
F: 404 332-4820 F: 404 332-4820
- ----------------------------------------------------------------------------------------------------------------------
Westpac 191 Peachtree Street 191 Peachtree Street
M/C GA380 M/C GA380
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Trudy T. Collins Attn: Trudy T. Collins
T: 404 332-6688 T: 404 332-6688
F: 404 332-4820 F: 404 332-4820
- ----------------------------------------------------------------------------------------------------------------------
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated:_______________,200__
FOR VALUE RECEIVED, the undersigned, THE INTERPUBLIC GROUP OF
COMPANIES, INC., a Delaware corporation (the "BORROWER"), HEREBY PROMISES TO PAY
to the order of ________________________ (the "LENDER") for the account of its
Applicable Lending Office on the later of (a) the Termination Date and (b) if
the Borrower has made the Term Loan Election prior to the Termination Date, the
Maturity Date (each as defined in the Credit Agreement referred to below) the
principal sum of U.S.$[amount of the Lender's Commitment in figures] or, if
less, the aggregate principal amount of the Revolving Credit Advances made by
the Lender to the Borrower pursuant to the 364-Day Credit Agreement dated as of
June 26, 2001 among the Borrower, the Lender and certain other lenders parties
thereto, Salomon Smith Barney, Inc., as lead arranger and book manager, and
Citibank, N.A. as Agent for the Lender and such other lenders (as amended or
modified from time to time, the "CREDIT AGREEMENT"; the terms defined therein
being used herein as therein defined) outstanding on such date.
The Borrower promises to pay interest on the unpaid principal amount
of each 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 in respect of each Revolving Credit
Advance (i) in Dollars are payable in lawful money of the United States of
America to the Agent at its account maintained at 399 Park Avenue, New York, New
York 10043, in same day funds and (ii) in any Committed Currency are payable in
such currency at the applicable Payment Office in same day funds. Each Revolving
Credit Advance owing to the Lender by the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes referred
to in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, (i) provides for the making of Revolving Credit
Advances by the Lender to the Borrower from time to time in an aggregate amount
not to exceed at any time outstanding the U.S. dollar amount first above
mentioned, the indebtedness of the Borrower resulting from each such Revolving
Credit Advance being evidenced by this Promissory Note, (ii) contains provisions
for determining the Dollar Equivalent of Revolving Credit Advances denominated
in Committed Currencies and (iii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
THE INTERPUBLIC GROUP OF
COMPANIES, INC.
By______________________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
- -------------------------------------------------------------------------------------------
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated:_______________,200__
FOR VALUE RECEIVED, the undersigned, THE INTERPUBLIC GROUP OF
COMPANIES, INC., a Delaware corporation (the "BORROWER"), HEREBY PROMISES TO PAY
to the order of ________________________ (the "LENDER") for the account of its
Applicable Lending Office (as defined in the 364-Day Credit Agreement dated as
of June 26, 2001 among the Borrower, the Lender and certain other lenders
parties thereto, Salomon Smith Barney, Inc., as lead arranger and book manager,
and Citibank, N.A., as Agent for the Lender and such other lenders (as amended
or modified from time to time, the "CREDIT AGREEMENT"; the terms defined therein
being used herein as therein defined)), on __________ __, 200_, the principal
amount of [U.S.$_______________] [for a Competitive Bid Advance in a Committed
Currency, list currency and amount of such Advance].
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a year
of _____ days for the actual number of days elapsed).
Both principal and interest are payable in lawful money of
________________ to Citibank, as agent, for the account of the Lender at the
office of _________________________, at _________________________ in same day
funds.
This Promissory Note is one of the Competitive Bid Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
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 Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
THE INTERPUBLIC GROUP OF
COMPANIES, INC.
By______________________________
Title:
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Penns Way
New Castle, Delaware 19720
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, [The Interpublic Group of Companies, Inc.][Name of
Designated Subsidiary], refers to the 364-Day Credit Agreement, dated as of June
26, 2001 (as amended or modified from time to time, the "CREDIT AGREEMENT", the
terms defined therein being used herein as therein defined), among The
Interpublic Group of Companies, Inc., certain Lenders parties thereto, Salomon
Smith Barney, Inc., as lead arranger and book manager, and Citibank, N.A., as
Agent for said Lenders, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby requests a
Revolving Credit Borrowing under the Credit Agreement, and in that connection
sets forth below the information relating to such Revolving Credit Borrowing
(the "PROPOSED REVOLVING CREDIT BORROWING") as required by Section 2.02(a) of
the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing is
_______________, 200_.
(ii) The Type of Advances comprising the Proposed Revolving Credit
Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit
Borrowing is [$_______________][for a Revolving Credit Borrowing in a
Committed Currency, list currency and amount of Revolving Credit
Borrowing].
[(iv) The initial Interest Period for each Eurocurrency Rate Advance
made as part of the Proposed Revolving Credit Borrowing is _____
month[s].]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Revolving
Credit Borrowing:
(A) the representations and warranties contained in Section 4.01 of
the Credit Agreement (except the representation set forth in the last
sentence of subsection (e) thereof) [and in the Designation Agreement of
the undersigned] are correct, before and after giving effect to the
Proposed Revolving Credit Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from
such Proposed Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
Very truly yours,
[THE INTERPUBLIC GROUP OF
COMPANIES, INC.][DESIGNATED SUBSIDIARY]
By_____________________________________
Title:
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Penns Way
New Castle, Delaware 19720
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, The Interpublic Group of Companies, Inc.[, on
behalf of [Name of Designated Subsidiary]], refers to the 364-Day Credit
Agreement, dated as of June 26, 2001 (as amended or modified from time to time,
the "CREDIT AGREEMENT", the terms defined therein being used herein as therein
defined), among The Interpublic Group of Companies, Inc., certain Lenders
parties thereto, Salomon Smith Barney, Inc., as lead arranger and book manager,
and Citibank, N.A., as Agent for said Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.03 of the Credit Agreement that the
undersigned hereby requests a Competitive Bid Borrowing under the Credit
Agreement, and in that connection sets forth the terms on which such Competitive
Bid Borrowing (the "PROPOSED COMPETITIVE BID BORROWING") is requested to be
made:
(A) Date of Competitive Bid Borrowing ________________________
(B) Amount of Competitive Bid Borrowing ________________________
(C) [Maturity Date] [Interest Period] ________________________
(D) Interest Rate Basis ________________________
(E) Day Count Convention ________________________
(F) Interest Payment Date(s) ________________________
(G) Currency ________________________
(H) Borrower's Account Location ________________________
(I) ___________________ ________________________
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(a) the representations and warranties contained in Section 4.01 of the
Credit Agreement (except the representation set forth in the last sentence of
subsection (e) thereof) [and in the Designation Agreement of the undersigned]
are correct, before and after giving effect to the Proposed Competitive Bid
Borrowing and to the application of the proceeds therefrom, as though made on
and as of such date;
(b) no event has occurred and is continuing, or would result from the
Proposed Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default; and
(c) the aggregate amount of the Proposed Competitive Bid Borrowing and all
other Borrowings to be made on the same day under the Credit Agreement is within
the aggregate amount of the unused Commitments of the Lenders.
The undersigned hereby confirms that the Proposed Competitive Bid
Borrowing is to be made available to it in accordance with Section 2.03(a)(v) of
the Credit Agreement.
Very truly yours,
[THE INTERPUBLIC GROUP OF
COMPANIES, INC.
By_______________________________
Title:
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Credit Agreement dated as of June
26, 2001 (as amended or modified from time to time, the "CREDIT AGREEMENT")
among The Interpublic Group of Companies, Inc., a Delaware corporation (the
"COMPANY"), the Lenders (as defined in the Credit Agreement), Salomon Smith
Barney, Inc., as lead arranger and book manager, and Citibank, N.A., as agent
for the Lenders (the "AGENT"). Terms defined in the Credit Agreement are used
herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof (other than in respect of Competitive Bid Advances and Competitive Bid
Notes) equal to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Agreement (other than in
respect of Competitive Bid Advances and Competitive Bid Notes). After giving
effect to such sale and assignment, the Assignee's Commitment and the amount of
the Revolving Credit Advances owing to the Assignee will be as set forth on
Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company or the
performance or observance by the Company of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Revolving Credit Note, if any, held by the Assignor [and
requests that the Agent exchange such Revolving Credit Note for a new Revolving
Credit Note payable to the order of [the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto or new Revolving Credit Notes
payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto and] the Assignor in an amount equal to
the Commitment retained by the Assignor under the Credit Agreement[,
respectively,] as specified on Schedule 1 hereto].
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01(e) thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will perform
in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (vi)
attaches any U.S. Internal Revenue Service forms required under Section 2.14 of
the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "EFFECTIVE DATE") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after
the Effective Date, the Agent
shall make all payments under the Credit Agreement and the Revolving Credit
Notes in respect of the interest assigned hereby (including, without limitation,
all payments of principal, interest and facility fees with respect thereto) to
the Assignee. The Assignor and Assignee shall make all appropriate adjustments
in payments under the Credit Agreement and the Revolving Credit Notes for
periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: $______
Aggregate outstanding principal amount of Revolving Credit Advances assigned: $______
Principal amount of Revolving Credit Note payable to Assignee: $______
Principal amount of Revolving Credit Note payable to Assignor: $______
Effective Date*: ________________,200 __
[NAME OF ASSIGNOR], as Assignor
By_________________________________
Title:
Dated: _______________, 200_
[NAME OF ASSIGNEE], as Assignee
By_________________________________
Title:
Dated: _______________, 200_
Domestic Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
- ----------
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
Accepted [and Approved]** this
__________ day of _______________, 200_
CITIBANK, N.A., as Agent
By__________________________________________
Title:
[Approved this _____day
of____________, 200_
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By________________________________________]*
- ----------
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
* Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
EXHIBIT D1 - FORM OF
OPINION OF CLEARY,
GOTTLIEB, STEEN &
HAMILTON
[Effective Date]
To each of the Lenders parties
to the Credit Agreement dated
as of June 26, 2001
among The Interpublic Group of Companies, Inc.,
said Lenders and Citibank, N.A.,
as Agent for said Lenders, and
to Citibank, N.A., as Agent
THE INTERPUBLIC GROUP OF COMPANIES, INC.
Ladies and Gentlemen:
We have acted as special counsel to The Interpublic Group of
Companies, Inc. (the "COMPANY") in connection with that certain 364-Day Credit
Agreement, dated as of June 26, 2001 (the "CREDIT AGREEMENT"), among the
Company, the Lenders parties thereto, Salomon Smith Barney, Inc., as lead
arranger and book manager, and Citibank, N.A., as Agent for said Lenders. Terms
defined in the Credit Agreement are used herein as therein defined. This opinion
is furnished to you pursuant to Section 3.01(g)(iv) of the Credit Agreement.
In arriving at the opinions expressed below, we have examined the
following documents:
(1) an executed copy of the Credit Agreement; and
(2) the documents furnished by the Company pursuant to Article III
of the Credit Agreement.
In addition, we have examined the originals, or copies certified or
otherwise identified to our satisfaction, of such other corporate records of the
Company, certificates of public officials and of officers and representatives of
the Company and such other persons, and we have made such investigations of law,
as we have deemed necessary as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. In addition, we have
assumed and have not verified the accuracy as to factual matters of each
document we have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company in the Credit Agreement).
Based upon the foregoing and subject to the further assumptions and
qualifications set forth below, it is our opinion that:
1. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes, and the consummation of the transactions
contemplated thereby, are within the Company's corporate powers, have been
duly authorized by all necessary corporate action, and do not contravene
any law, rule or regulation applicable to the Company.
2. The Credit Agreement is, and after giving effect to the initial
Borrowing, the Notes delivered by the Company will be, valid, binding and
enforceable obligations of the Company in accordance with their respective
terms.
3. No authorization, approval or other action by, and no notice to
or filing with, any governmental authority of the United States or the
State of New York is required for the execution, delivery and performance
by the Company of the Credit Agreement and the Notes to be delivered by
it.
Insofar as the foregoing opinions relate to the validity, binding
effect or enforceability of any agreement or obligation of the Company, (a) we
have assumed that each party to such agreement or obligation has satisfied those
legal requirements that are applicable to it to the extent necessary to make
such agreement or obligation enforceable against it (except that no such
assumption is made as to the Company regarding matters of the federal law of the
United States of America, the law of the State of New York or the General
Corporation Law of the State of Delaware) and (b) such opinions are subject to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally and to general principles of equity.
We express no opinion as to (i) Section 2.14 of the Credit Agreement
insofar as it provides that any Lender purchasing a participation from another
Lender pursuant thereto may exercise set-off or similar rights with respect to
such participation and (ii) the effect of the law of any jurisdiction other than
the State of New York wherein any Lender may be located or wherein enforcement
of the Credit Agreement or the Notes may be sought that limits the rates of
interest legally chargeable or collectible.
We note that the designations in Section 9.13(a) of the Credit
Agreement, are (notwithstanding the waiver in Section 9.13(b) of the Credit
Agreement) subject to the power of such courts to transfer actions pursuant to
28 U.S.C. SS 1404(a) or to dismiss such actions or proceedings on the grounds
that such a federal court is an inconvenient forum for such action or
proceeding.
With respect to the first sentence of Section 9.13(a) of the Credit
Agreement, we express no opinion as to the subject matter jurisdiction of any
United States federal court to adjudicate any action relating to the Credit
Agreement where jurisdiction based on diversity of citizenship under 28 U.S.C.
SS 1332 does not exist.
We express no opinion as to Section 9.12 of the Credit
Agreement. In addition, the opinion expressed in paragraph 1 above relates only
to those laws and regulations that, in our experience, are normally applicable
to transactions of the type referred to in the Credit Agreement.
The foregoing opinions are limited to the law of the State of New
York, the General Corporation Law of the State of Delaware and the federal law
of the United States.
We are furnishing this opinion letter to you solely for your benefit
in connection with the Credit Agreement. This opinion letter is not to be used,
circulated, quoted or otherwise referred to for any other purpose.
Notwithstanding the foregoing, a copy of this opinion letter may be furnished
to, and relied upon by, a permitted transferee who becomes a party to the Credit
Agreement as a Lender thereunder, and you or any such transferee may show this
opinion to any governmental authority pursuant to requirements of applicable law
or regulations. The opinions expressed herein are, however, rendered on and as
of the date hereof, and we assume no obligation to advise you or any such
transferee or governmental authority or any other person, or to make any
investigations, as to any legal developments or factual matters arising
subsequent to the date hereof that might affect the opinions expressed herein.
Very truly yours,
CLEARY, GOTTLIEB, STEEN & HAMILTON
By:__________________________________
James F. Munsell, a partner
EXHIBIT D2 - FORM OF
OPINION OF IN-HOUSE
COUNSEL OF THE
COMPANY
[Effective Date]
To each of the Lenders parties
to the Credit Agreement dated
as of June 26, 2001
among The Interpublic Group of Companies, Inc.,
said Lenders and Citibank, N.A.,
as Agent for said Lenders, and
to Citibank, N.A., as Agent
364-DAY REVOLVING CREDIT AGREEMENT
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(g)(iv) of
the 364-Day Credit Agreement, dated as of June 26, 2001 (the "CREDIT
AGREEMENT"), among The Interpublic Group of Companies, Inc. (the "COMPANY"), the
Lenders parties thereto, Salomon Smith Barney, Inc., as lead arranger and book
manager, and Citibank, N.A., as Agent for said Lenders. Terms defined in the
Credit Agreement are used herein as therein defined.
I have acted as General Counsel for the Company in connection with
the preparation, execution and delivery of the Credit Agreement.
In arriving at the opinions expressed below, I have examined the
following documents:
(1) An executed copy of the Credit Agreement
(2) The documents furnished by the Company pursuant to Article III
of the Credit Agreement.
(3) A copy of the Restated Certificate of Incorporation of the
Company and all amendments thereto (the "CHARTER").
(4) A copy of the by-laws of the Company and all amendments thereto
(the "BY-LAWS").
(5) A certificate of the Secretary of State of Delaware, dated
__________, 2001, attesting to the continued corporate existence and good
standing of the Company in that State.
In addition, I have examined the originals, or copies certified or
otherwise identified to my satisfaction, of such other corporate records of the
Company, certificates of public officials and of officers of the Company and
such other persons as I have deemed necessary as a basis for the opinions
expressed below.
In rendering the opinions expressed below, I have assumed the
authenticity of all documents submitted to me as originals and the conformity to
the originals of all documents submitted to me as copies. In addition, I have
assumed and have not verified the accuracy as to factual matters of each
document I have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company in the Credit Agreement).
Based upon the foregoing and subject to the further assumptions and
qualifications set forth below,
it is my opinion that:
(1) The Company is a corporation validly existing and in good
standing under the laws of the State of Delaware.
(2) The execution, delivery and performance by the Company of the
Credit Agreement and the Notes, and the consummation of the transactions
contemplated thereby, are within the Company's corporate powers, have been
duly authorized by all necessary corporate action, and do not contravene
(i) the Charter or the By-laws or (ii) any material contractual or legal
restriction known to me contained in any material document to which the
Company is a party or by which it is bound. The Credit Agreement and the
Notes have been duly executed and delivered on behalf of the Company..
(3) To my knowledge, no authorization, approval or other action by,
and no notice to or filing with, any third party is required for the
execution, delivery and performance by the Company of the Credit Agreement
and the Notes to be delivered by it.
(4) To my knowledge, there are no pending or overtly threatened
actions or proceedings against the Company or any of its Consolidated
Subsidiaries before any court, governmental agency or arbitrator that
purport to affect the validity, binding effect or enforceability of the
Credit Agreement or any of the Notes or the consummation of the
transactions contemplated thereby or that are likely to have a materially
adverse effect upon the financial condition or operations of the Company
and its Consolidated Subsidiaries taken as a whole.
The foregoing opinions are limited to the law of the State of New
York, the General Corporation Law of the State of Delaware and the Federal law
of the United States.
I am furnishing this opinion letter to you solely for your benefit
in connection with the Credit Agreement. This opinion letter is not to be used,
circulated, quoted or otherwise referred to for any other purpose.
Notwithstanding the foregoing, a copy of this opinion letter may be furnished
to, and relied upon by, a permitted transferee who becomes a party to the Credit
Agreement as a Lender thereunder, and you or any such transferee may show this
opinion to any governmental authority pursuant to requirements of applicable law
or regulations. The opinions expressed herein are, however, rendered on and as
of the date hereof, and I assume no obligation to advise you or any such
transferee or governmental authority or any other person, or to make any
investigations, as to any legal developments or factual matters arising
subsequent to the date hereof that might affect the opinions expressed herein.
Very truly yours,
___________________________________
Nicholas J. Camera, General Counsel
EXHIBIT E - FORM OF
DESIGNATION AGREEMENT
[DATE]
To each of the Lenders
parties to the Credit Agreement
(as defined below) and to Citibank, N.A.
as Agent for such Lenders
Ladies and Gentlemen:
Reference is made to the 364-Day Revolving Credit Agreement dated as
of June 26, 2001 among The Interpublic Group of Companies, Inc. (the "COMPANY"),
certain other borrowers parties thereto, the Lenders parties thereto, Salomon
Smith Barney, Inc., as lead arranger and book manager, and Citibank, N.A., as
Agent for said Lenders (the "CREDIT AGREEMENT"). Terms used herein and defined
in the Credit Agreement shall have the respective meanings ascribed to such
terms in the Credit Agreement.
Please be advised that the Company hereby designates its undersigned
Subsidiary, ____________ ("DESIGNATED SUBSIDIARY"), as a "Designated Subsidiary"
under and for all purposes of the Credit Agreement.
The Designated Subsidiary, in consideration of each Lender's
agreement to extend credit to it under and on the terms and conditions set forth
in the Credit Agreement, does hereby assume each of the obligations imposed upon
a "Designated Subsidiary" and a "Borrower" under the Credit Agreement and agrees
to be bound by the terms and conditions of the Credit Agreement. In furtherance
of the foregoing, the Designated Subsidiary hereby represents and warrants to
each Lender as follows:
(a) The Designated Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of ________________.
(b) The execution, delivery and performance by the Designated
Subsidiary of this Designation Agreement, the Credit Agreement and the
Notes to be delivered by it are within the Designated Subsidiary's
corporate powers, have been duly authorized by all necessary corporate
action and do not contravene (i) the Designated Subsidiary's charter or
by-laws or (ii) any law, rule or regulation applicable to the Designated
Subsidiary or (iii) any material contractual or legal restriction binding
on the Designated Subsidiary. The Designation Agreement and the Notes
delivered by it have been duly executed and delivered on behalf of the
Designated Subsidiary.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the Designated
Subsidiary of this Designation Agreement, the Credit Agreement or the
Notes to be delivered by it.
(d) This Designation Agreement is, and the Notes to be delivered by
the Designated Subsidiary when delivered will be, legal, valid and binding
obligations of the Designated Subsidiary enforceable against the
Designated Subsidiary in accordance with their respective terms.
(e) There is no pending or, to the knowledge of the Designated
Subsidiary , threatened action or proceeding affecting the Designated
Subsidiary or any of its Subsidiaries before any court, governmental
agency or arbitrator which purports to affect the legality, validity or
enforceability of this Designation Agreement, the Credit Agreement or any
Note of the Designated Subsidiary.
This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
Very truly yours,
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By __________________________________________
Name:
Title:
[THE DESIGNATED SUBSIDIARY]
By __________________________________________
Name:
Title:
EXECUTION COPY
U.S. $500,000,000
364-DAY CREDIT AGREEMENT
Dated as of June 26, 2001
Among
THE INTERPUBLIC GROUP OF COMPANIES, INC.
AS COMPANY
THE INITIAL LENDERS NAMED HEREIN
AS INITIAL LENDERS
CITIBANK, N.A.
AS ADMINISTRATIVE AGENT
and
SALOMON SMITH BARNEY INC.
AS LEAD ARRANGER AND BOOK MANAGER
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1
SECTION 1.01. CERTAIN DEFINED TERMS 1
SECTION 1.02. COMPUTATION OF TIME PERIODS 11
SECTION 1.03. ACCOUNTING TERMS 11
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES 11
SECTION 2.01. THE REVOLVING CREDIT ADVANCES 11
SECTION 2.02. MAKING THE REVOLVING CREDIT ADVANCES 12
SECTION 2.03. THE COMPETITIVE BID ADVANCES 13
SECTION 2.04. FEES 16
SECTION 2.05. OPTIONAL TERMINATION OR REDUCTION OF THE COMMITMENTS 16
SECTION 2.06. REPAYMENT OF REVOLVING CREDIT ADVANCES 17
SECTION 2.07. INTEREST ON REVOLVING CREDIT ADVANCES 17
SECTION 2.08. INTEREST RATE DETERMINATION 17
SECTION 2.09. OPTIONAL CONVERSION OF REVOLVING CREDIT ADVANCES 18
SECTION 2.10. PREPAYMENTS OF REVOLVING CREDIT ADVANCES 19
SECTION 2.11. INCREASED COSTS 19
SECTION 2.12. ILLEGALITY 20
SECTION 2.13. PAYMENTS AND COMPUTATIONS 20
SECTION 2.14. TAXES 21
SECTION 2.15. SHARING OF PAYMENTS, ETC. 23
SECTION 2.16. EVIDENCE OF DEBT 23
SECTION 2.17. USE OF PROCEEDS 23
SECTION 2.18. EXTENSION OF TERMINATION DATE 23
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING 25
SECTION 3.01. CONDITIONS PRECEDENT TO EFFECTIVENESS OF
SECTIONS 2.01 AND 2.03 25
SECTION 3.02. INITIAL ADVANCE TO EACH DESIGNATED SUBSIDIARY 26
SECTION 3.03. CONDITIONS PRECEDENT TO EACH REVOLVING CREDIT
BORROWING AND EXTENSION DATE 27
SECTION 3.04. CONDITIONS PRECEDENT TO EACH COMPETITIVE BID BORROWING 27
SECTION 3.05. DETERMINATIONS UNDER SECTION 3.01 AND 3.02 28
ARTICLE IV REPRESENTATIONS AND WARRANTIES 28
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE COMPANY 28
ARTICLE V COVENANTS OF THE COMPANY 30
SECTION 5.01. AFFIRMATIVE COVENANTS 30
SECTION 5.02. NEGATIVE COVENANTS 32
SECTION 5.03. FINANCIAL COVENANTS 33
ARTICLE VI EVENTS OF DEFAULT 34
SECTION 6.01. EVENTS OF DEFAULT 34
ARTICLE VII GUARANTY 36
7.01. GUARANTY 36
7.02. GUARANTY ABSOLUTE 36
7.03. WAIVERS AND ACKNOWLEDGMENTS 37
7.04. SUBROGATION 37
7.05. CONTINUING GUARANTY; ASSIGNMENTS 38
ARTICLE VIII THE AGENT 38
SECTION 8.01. AUTHORIZATION AND ACTION 38
SECTION 8.02. AGENT'S RELIANCE, ETC. 38
SECTION 8.03. CITIBANK AND AFFILIATES 39
SECTION 8.04. LENDER CREDIT DECISION 39
SECTION 8.05. INDEMNIFICATION 39
SECTION 8.06. SUCCESSOR AGENT 39
SECTION 8.07. SUB-AGENT 40
SECTION 8.08. OTHER AGENTS 40
ARTICLE IX MISCELLANEOUS 40
SECTION 9.01. AMENDMENTS, ETC. 40
SECTION 9.02. NOTICES, ETC. 40
SECTION 9.03. NO WAIVER; REMEDIES 41
SECTION 9.04. COSTS AND EXPENSES 41
SECTION 9.05. RIGHT OF SET-OFF 42
SECTION 9.06. BINDING EFFECT 42
SECTION 9.07. ASSIGNMENTS AND PARTICIPATIONS 42
SECTION 9.08. CONFIDENTIALITY 44
SECTION 9.09. DESIGNATED SUBSIDIARIES 44
SECTION 9.10. GOVERNING LAW 45
SECTION 9.11. EXECUTION IN COUNTERPARTS 45
SECTION 9.12. JUDGMENT 45
SECTION 9.13. JURISDICTION, ETC. 45
SECTION 9.14. SUBSTITUTION OF CURRENCY 46
SECTION 9.15. WAIVER OF JURY TRIAL 47
SCHEDULES
Schedule I - List of Applicable Lending Offices
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Company
Exhibit E - Form of Designation Agreement
EXHIBIT 10(b)
EXECUTION COPY
AMENDMENT NO. 1 TO THE
FIVE YEAR CREDIT AGREEMENT
Dated as of June 26, 2001
AMENDMENT NO. 1 TO THE FIVE YEAR CREDIT AGREEMENT among The
Interpublic Group of Companies, Inc., a Delaware corporation (the "COMPANY"),
the banks, financial institutions and other institutional lenders parties to the
Credit Agreement referred to below (collectively, the "LENDERS") and Citibank,
N.A., as administrative agent (the "AGENT") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Company, the Lenders and the Agent have entered into a Five
Year Credit Agreement dated as of June 27, 2000 (the "CREDIT AGREEMENT").
Capitalized terms not otherwise defined in this Amendment have the same meanings
as specified in the Credit Agreement.
(2) The Company and the Lenders have agreed to amend the Credit
Agreement as hereinafter set forth.
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 2, hereby amended as follows:
(a) The definitions of "COMMITTED CURRENCIES", "EBITDA",
"EUROCURRENCY RATE", "LIBO RATE" and "REFERENCE BANKS" in Section 1.01 are in
full to read as follows:
"COMMITTED CURRENCIES" means lawful currency of the United
Kingdom of Great Britain and Northern Ireland, lawful currency of
the Federal Republic of Germany, lawful currency of the Republic of
France, lawful currency of The Swiss Federation, lawful currency of
Japan, Euro and any other currency requested by the applicable
Borrower that can be provided by all Lenders.
"EBITDA" means, for any period, net income (or net loss) PLUS
the sum of (a) Interest Expense, (b) income tax expense, (c)
depreciation expense, (d) amortization expense, in each case
determined in accordance with GAAP for such period, (e)
restructuring and other merger related charges, (f) costs related to
the acquisition of Deutsch, Inc. and its Affiliates, (g) investment
impairment charges, in the case of (e), (f) and (g), as recorded in
the financial statements of the Company and its Consolidated
Subsidiaries in accordance with GAAP for the fiscal quarters ended
September 30, 2000, December 31, 2000 and March 31, 2001 and (h)
non-recurring charges up to an aggregate amount of $100,000,000, as
recorded in the financial statements of the Company and its
Consolidated Subsidiaries in accordance with GAAP for the six months
ended September 30, 2001.
"EUROCURRENCY RATE" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving
Credit Borrowing, an interest rate per annum equal to the rate per
annum obtained by dividing (a)(i) in the case of any Revolving
Credit Borrowing denominated in Dollars or any Committed Currency
other than Euro, the rate per annum (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum) appearing on Telerate
Markets Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars or the applicable Committed
Currency at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable
to such Interest Period or, if for any reason such rate is not
available, the average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the respective rates per annum at which deposits in
Dollars or the applicable Committed Currency are offered by the
principal office of each of the Reference Banks in London, England
to prime banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period
in an amount substantially equal to such Reference Bank's
Eurocurrency Rate Advance comprising part of such Revolving Credit
Borrowing to be outstanding during such Interest Period and for a
period equal to such Interest Period (subject, however, to the
provisions of Section 2.08) or (ii) in the case of any Revolving
Credit Borrowing denominated in Euro, the EURIBO Rate by (b) a
percentage equal to 100% minus the Eurocurrency Rate Reserve
Percentage for such Interest Period.
"LIBO RATE" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a)(i) in the case of any Competitive Bid Borrowing
denominated in Dollars or any Committed Currency other than Euro,
the rate per annum (rounded upward to the nearest whole multiple of
1/16 of 1% per annum) appearing on Telerate Markets Page 3750 (or
any successor page) as the London interbank offered rate for
deposits in Dollars or the applicable Committed Currency at
approximately 11:00 A.M. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to such
Interest Period or, if for any reason such rate is not available,
the average (rounded upward to the nearest whole multiple of 1/16 of
1% per annum, if such average is not such a multiple) of the
respective rates per annum at which deposits in Dollars or the
applicable Committed Currency are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period in an amount
substantially equal to the amount that would be the Reference Banks'
respective ratable shares of such Borrowing if such Borrowing were
to be a Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period
(subject, however, to the provisions of Section 2.08) or (ii) in the
case of any Competitive Bid Borrowing denominated in Euro, the
EURIBO Rate by (b) a percentage equal to 100% minus the Eurocurrency
Rate Reserve Percentage for such Interest Period.
"REFERENCE BANKS" means Citibank, HSBC Bank USA and The Chase
Manhattan Bank.
(b) [Intentionally omitted].
(c) Section 1.01 is further amended by adding thereto in appropriate
alphabetical order, the following definitions:
"EURIBO RATE" means, for any Interest Period, the rate per
annum appearing on Telerate Markets Page 248 (or on any successor or
substitute page, or any successor to or substitute for Telerate
Markets, providing rate quotations comparable to those currently
provided on such page of Telerate Markets, as determined by the
Agent from time to time for purposes of providing quotations of
interest rates applicable to deposits in Euro by reference to the
Banking Federation of the European Union Settlement Rates for
deposits in Euro) at approximately 10:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as
the rate for deposits in Euro with a maturity comparable to such
Interest Period or, if for any reason such rate is not available,
the average (rounded upward to the nearest whole multiple of 1/16 of
1% per annum, if such average is not such a multiple) of the
respective rates per annum at which deposits in Euros are offered by
the principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of such
Interest Period in an amount substantially equal (x) in the case of
Revolving Credit Borrowings, to such Reference Bank's Eurocurrency
Rate Advance comprising part of such Revolving Credit Borrowing to
be outstanding during such Interest Period
and for a period equal to such Interest Period (subject, however, to
the provisions of Section 2.08) or (y) in the case of Competitive
Bid Borrowings, to the amount that would be the Reference Banks'
respective ratable shares of such Borrowing if such Borrowing were
to be a Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period
(subject, however, to the provisions of Section 2.08).
"EURO" means the lawful currency of the European Union as
constituted by the Treaty of Rome which established the European
Community, as such treaty may be amended from time to time and as
referred to in the EMU legislation.
(d) Section 2.02 is amended (i) by deleting the phrase "11:00 A.M.
(New York City time) on the third Business Day" in clause (x) and substituting
therefor the phrase "10:00 A.M. (New York City time) on the second Business Day"
and (ii) by deleting the time "11:00 A.M. (New York City time) in clause (z) and
substituting therefor the time "12:00 noon (New York City time)".
(e) Section 2.10(a) is amended by deleting the phrase "at least two
Business Days prior to the date of such prepayment" and substituting therefor
the phrase "at least one Business Day prior to the date of such prepayment".
(f) Section 5.02(a) is amended by (i) deleting the word "and" at the
end of clause (x), (ii) adding the word "and" at the end of clause (xi) and
(iii) adding a new clause (xii) to read as follows:
(xii) any legal or contractual right of set-off or any
contractual right to charge the accounts of the Company or any of
its Consolidated Subsidiaries to effect the payment of amounts due
in respect of any Debt or financing arrangement.
(g) Section 6.01(d) is amended in full to read as follows:
(d) The Company or any of its Consolidated Subsidiaries shall fail
to pay any principal of or premium or interest on any Debt (but
excluding Debt outstanding hereunder and Debt owed solely to the
Company or to a Consolidated Subsidiary) of the Company or such
Consolidated Subsidiary (as the case may be), when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the
agreement or instrument creating or evidencing such Debt; or any
other event shall occur or condition shall exist under any agreement
or instrument creating or evidencing any such Debt and shall
continue after the applicable grace period, if any, specified in
such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due
and payable, or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such
Debt shall be required to be made, in each case prior to the stated
maturity thereof; PROVIDED that the aggregate principal amount (or,
in the case of any payment default, failure or other event in
respect of a Hedge Agreement, the net amount due and payable under
such Hedge Agreement as of the date of such payment default, failure
or event) of all Debt as to which any such payment defaults (whether
or not at stated maturity thereof), failures or other events shall
have occurred and be continuing exceeds $10,000,000, PROVIDED,
FURTHER, that if any of the actions or events set forth above in
this subsection (d) shall be taken in respect of, or occur with
respect to, a Consolidated Subsidiary, such action or event shall
not be the basis for or give rise to an Event of Default under this
subsection (d) until five Business Days after the chief executive
officer, chief operation officer, principal financial officer or
principle accounting officer of the Company knows or has reason to
know of the occurrence of such action or event if (x) the assets or
revenues of such Consolidated Subsidiary and its Consolidated
Subsidiaries, taken as a whole, comprise 5% or less of the assets or
revenues, respectively, of the Company and its
Consolidated Subsidiaries, taken as a whole, and (y) the aggregate
assets and revenues of all Consolidated Subsidiaries otherwise
subject to such actions or events set forth above do not comprise
more than 15% of the assets or revenues, respectively, of the
Company and its Consolidated Subsidiaries taken as a whole; or
(h) Section 6.01(e) is amended in full to read as follows:
(e) The Company or any of its Consolidated Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit
in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Company or any of its
Consolidated Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial
part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 60
days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall
occur; or the Company or any of its Consolidated Subsidiaries shall
take any corporate action to authorize any of the actions set forth
above in this subsection (e); PROVIDED, that if any of the actions
or events set forth above in this subsection (e) shall be taken in
respect of, or occur with respect to, a Consolidated Subsidiary,
such action or event shall not be the basis for or give rise to an
Event of Default under this subsection (e) if (x) the assets or
revenues of such Consolidated Subsidiary and its Consolidated
Subsidiaries, taken as a whole, comprise 5% or less of the assets or
revenues, respectively, of the Company and its Consolidated
Subsidiaries, taken as a whole, and (y) the aggregate assets and
revenues of all Consolidated Subsidiaries otherwise subject to such
actions or events set forth above do not comprise more than 15% of
the assets or revenues, respectively, of the Company and its
Consolidated Subsidiaries taken as a whole; or
SECTION 2. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
effective as of the date first above written when, and only when, on or before
June 26, 2001 the Agent shall have received counterparts of this Amendment
executed by the Borrower and the Required Lenders or, as to any of the Lenders,
advice satisfactory to the Agent that such Lender has executed this Amendment.
This Amendment is subject to the provisions of Section 8.01 of the Credit
Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company
represents and warrants as follows:
(a) The Company is a corporation duly organized, incorporated,
validly existing and in good standing under the laws of the State of
Delaware, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry
on its business.
(b) The execution, delivery and performance by the Company of
this Amendment and the Credit Agreement, as amended hereby, are
within the Company's corporate powers, have been duly authorized by
all necessary corporate action and do not contravene, or constitute
a default under, any provision of applicable law or regulation or
the certificate of incorporation of the company or any judgment,
injunction, order, decree, material agreement or other instrument
binding upon the Company or result in the creation or imposition of
any Lien on any asset of the
Company or any of its Consolidated Subsidiaries.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body or any other third party is required for the due execution,
delivery or performance by the Company of this Amendment, the Credit
Agreement or any of the Notes to which it is or is to be a party, as
amended hereby.
(d) This Amendment has been duly executed and delivered by the
Company. This Amendment and each of the Credit Agreement and the
Notes to which the Company is or is to be a party, as amended
hereby, are legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the rights of creditors generally
and subject to general principles of equity.
(e) There is no action, suit, investigation, litigation or
proceeding pending against, or, to the knowledge of the Company,
threatened against the Company or any of its Consolidated
Subsidiaries before any court or arbitrator or any governmental
body, agency or official in which there is a significant probability
of an adverse decision that (i) would have a Material Adverse Effect
or (ii) purports to affect the legality, validity or enforceability
of this Amendment or the Credit Agreement or any Note, as amended
hereby, or the consummation of any of the transactions contemplated
hereby.
SECTION 4. Reference to and Effect on the Credit Agreement and the
Notes. a) On and after the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Credit Agreement, and each reference in the Notes to
"the Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement, as amended by this Amendment.
(b) The Credit Agreement and the Notes, as specifically amended by
this Amendment, are and shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender or the Agent under the Credit Agreement,
nor constitute a waiver of any provision of the Credit Agreement.
SECTION 5. Costs and Expenses The Company agrees to pay on demand
all reasonable costs and expenses of the Agent in connection with the
preparation, execution, delivery and administration, modification and amendment
of this Amendment and the other instruments and documents to be delivered
hereunder (including, without limitation, the reasonable fees and expenses of
counsel for the Agent) in accordance with the terms of Section 9.04 of the
Credit Agreement.
SECTION 6. 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 shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
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 INTERPUBLIC GROUP OF COMPANIES, INC.
By
-------------------------------------
Title:
CITIBANK, N.A.,
as Agent and as Lender
By
-------------------------------------
Title:
Bank of America, N.A.
----------------------------------------
{TYPE OR PRINT NAME OF INSTITUTION}
By
-------------------------------------
Title:
Bank of New York
----------------------------------------
{TYPE OR PRINT NAME OF INSTITUTION}
By
-------------------------------------
Title:
Suntrust Bank
----------------------------------------
{TYPE OR PRINT NAME OF INSTITUTION}
By
-------------------------------------
Title:
Lloyds TSB Bank PLC
----------------------------------------
{TYPE OR PRINT NAME OF INSTITUTION}
By
-------------------------------------
Title:
KeyBank National Association
----------------------------------------
{TYPE OR PRINT NAME OF INSTITUTION}
By
-------------------------------------
Title:
HSBC Bank USA
----------------------------------------
{TYPE OR PRINT NAME OF INSTITUTION}
By
-------------------------------------
Title:
Fleet National Bank
----------------------------------------
{TYPE OR PRINT NAME OF INSTITUTION}
By
-------------------------------------
Title:
The Chase Manhattan Bank
----------------------------------------
{TYPE OR PRINT NAME OF INSTITUTION}
By
-------------------------------------
Title:
Barclays Bank PLC
----------------------------------------
{TYPE OR PRINT NAME OF INSTITUTION}
By
-------------------------------------
Title:
EXHIBIT 10(c)
As of June 1, 2001
Mr. Richard A. Goldstein
Chairman and Chief Executive Officer
International Flavors & Fragrances, Inc.
521 West 57th Street
New York, New York 10019
Dear Mr. Goldstein:
This letter sets forth the terms and conditions under which The
Interpublic Group of Companies, Inc., agrees to pay you Deferred Compensation
with respect to such period of time beginning on June 1, 2001 and ending on the
date of your retirement. Interpublic is sometimes referred to in this letter as
the "COMPANY".
1. DEFINITION OF YEAR. For purposes of this letter, each period of time
beginning on June 1st of any year, and ending on May 31st, of the following
year, shall be referred to as a "YEAR".
2. DEFERRED COMPENSATION. With respect to any compensation which may be
payable to you from time to time, as a member of The Board of Directors of
Interpublic ("Board") or any committee thereof, the Company will compensate you
by payment, at the times and in the manner specified in this letter, of a sum
equal to the aggregate amount of such compensation ("DEFERRED COMPENSATION")
computed at the rate of (see schedule attached) per annum for each full year and
a proportionate amount for any partial year.
3. VESTING. Your right to receive accrued Deferred Compensation shall vest
on the earliest to occur of the following:
a. If you retire from the Board on the date of such retirement; or
b. In the event of your death or permanent disability (as defined in the
Long Term Disability Plan of the Company) on the date of your death or the
date on which you become permanently disabled.
4. INTEREST. Credits equivalent to interest will be earned on any Deferred
Compensation ultimately payable to you in accordance with the terms and
conditions of the Plan for Credits Equivalent to Interest on Balances of
Deferred Compensation Owing under Employment Agreements (the "PLAN"), adopted
effective January 1, 1974 by The Interpublic Group of Companies, Inc. A copy of
the Plan is attached to this letter. You acknowledge that the Company has the
right to discontinue further credits equivalent to interest in accordance with
the terms and conditions of the Plan.
5. PAYMENT OF VESTED DEFERRED COMPENSATION. Vested Deferred Compensation
will be paid to you in a single lump-sum amount, with interest accrued through
the date of the lump-sum payment, upon your retirement and with the consent of
the Company.
6. DEATH OR PERMANENT DISABILITY. If you die while still a member of the
Board, any amount vested in accordance with the provisions hereof, shall be paid
to the Executor of your Will or the Administrator of your Estate. If you become
permanently disabled (as defined in the Long Term Disability Plan of the
Company) while still a member of the Board, any amount vested in accordance with
the provisions hereof, shall be paid to you in the month following the month in
which you become permanently disabled.
7. SUPPLEMENTARY NATURE OF THIS LETTER. Nothing in this letter shall
obligate you to remain as a member of the Board or obligate the Company to
maintain you as a member of the Board.
8. TAXES. There shall be deduced from all amounts paid under this
Agreement any taxes that the Company reasonably determines are requested to be
withheld by any government or government agency. You or your representative
shall bear any and all taxes imposed on amounts paid under this Agreement
irrespective of whether withholding is requires.
9. GOVERNING LAW. This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Will you please indicate your agreement to the foregoing by signing the
enclosed copy of this letter.
Very truly yours,
THE INTERPUBLIC GROUP OF
COMPANIES, INC.
By:_______________________________________
Name: Kent Kroeber
Title: Senior Vice President
- Human Resources
AGREED:
___________________________
Richard Goldstein
PLAN FOR CREDITS EQUIVALENT TO INTEREST ON
BALANCES OF DEFERRED COMPENSATION
OWING UNDER EMPLOYMENT AGREEMENTS
EFFECTIVE DATE: January 1, 1974.
BALANCES COVERED: All deferred compensation, under Employment
Agreements to which the Corporation is a
party, owing (even though not yet payable and
even though subject to conditions) on January
1, 1974 or thereafter to persons who on
January 1, 1974 or thereafter are in the
employ of the Corporation or its
subsidiaries, including balances owing to
persons who cease to be employees after that
date; subject to the right of the Corporation
to discontinue further credits of sums
equivalent to interest effective at the
beginning of any calendar year on prior
notice to the employees or former employees
affected.
DATE ON WHICH SUMS Last day of each calendar quarter (hereafter
EQUIVALENT TO INTEREST referred to as a "Crediting Date"), but in
ARE CREDITED: the year in which the final balance is paid
equivalents are also creditable on the date
of the last payment and shall be included in
the amounts so disbursed on that date.
RATES: The prevailing rate payable on 5-year
treasury notes plus 1%, such rate to be
determined conclusively by the Chief
Financial Officer of the Corporation and set
forth by him in a certificate filed with the
Secretary of the Corporation; provided,
however, that the rate credited under this
plan shall not be less than 7.25% for the
calendar year 2001.
COMPUTATION AND COM- On-each Crediting Date, credits equivalent to
POUNDING PROCEDURES : interest for the relevant period are to be
computed on the average balance of deferred
compensation owing by the Corporation under
each Employment Agreement including sums
equivalent to interest credited on prior
Crediting Dates, such average balance to be
computed pursuant to such method or methods
as shall be determined conclusively by the
Chief Financial Officer of the Corporation.
TERMS OF PAYMENT Credits equivalent to interest shall be paid
TO EMPLOYEES AND out at the same times, in the same manner,
FORMER EMPLOYEES: and on the same terms and conditions as other
items of deferred compensation accrued
pursuant to each Employment Agreement.
As amended through 10/00
DIRECTORS FEES
Annual Retainer $24,000
Committee Chairpersons:
- Audit 3,500/A
- Compensation 3,500/A
- Nominating 3,000/A
Committee Members 2,000/A
Board Meeting Attendance Fee 1,000
Other Meeting Attendance Fee 1,000
Second Meeting - Same Day 1,000
3,000 shares of restricted stock (five year vesting period) on the first Friday
in June of the year in which he or she becomes a Director, then 3,000 shares
every five years.
2,000 stock options on the first Friday of every June.
EXHIBIT 11
PAGE 1 OF 2
THE INTERPUBLIC GROUP OF COMPANIES, INC. AND ITS SUBSIDIARIES
COMPUTATION OF EARNINGS PER SHARE
(AMOUNTS IN THOUSANDS EXCEPT PER SHARE DATA)
THREE MONTHS ENDED JUNE 30,
---------------------------
2001 2000
---- ----
BASIC
Net income (loss) $(110,158) $166,361
========= ========
Weighted average number of common shares Outstanding 368,911 356,680
========= ========
Earnings (loss) per common and common equivalent share $ (.30) $ .47
========= ========
THREE MONTHS ENDED JUNE 30,
---------------------------
2001 2000
---- ----
DILUTED (1)
Net income (loss) $(110,158) $166,361
Add:
After tax savings on assumed conversion
of subordinated debentures and notes -- 4,614
Dividends paid net of related income tax
applicable to restricted stock -- 173
--------- --------
Net income (loss), as adjusted $(110,158) $171,148
========= ========
Weighted average number of common shares Outstanding 368,911 356,680
Weighted average number of incremental shares
in connection with restricted stock
and assumed exercise of stock options -- 11,136
Assumed conversion of subordinated debentures and notes -- 13,053
--------- --------
Total 368,911 380,869
========= ========
Earnings (loss) per common and common equivalent share $ (.30) $ .45
========= ========
(1) The computation of diluted EPS for 2001 excludes the assumed conversion of
the 1.80% and 1.87% Convertible Subordinated Notes, and the conversion of
restricted stock and assumed exercise of stock options because they were
antidilutive.
1
EXHIBIT 11
PAGE 2 OF 2
THE INTERPUBLIC GROUP OF COMPANIES, INC. AND ITS SUBSIDIARIES
COMPUTATION OF EARNINGS PER SHARE
(AMOUNTS IN THOUSANDS EXCEPT PER SHARE DATA)
SIX MONTHS ENDED JUNE 30
------------------------
2001 2000
---- ----
BASIC:
Net income (loss) $(138,829) $216,295
Weighted average number of common shares outstanding 367,520 356,148
Earnings (loss) per common share $ (.38) $ .61
========= ========
SIX MONTHS ENDED JUNE 30
------------------------
2001 2000
---- ----
DILUTED:
Net income (loss) $(138,829) $216,295
Add:
After tax savings on assumed
conversion of subordinated debentures and notes -- --
Dividends paid net of related income tax
applicable to restricted stock -- 335
--------- --------
Net income (loss), as adjusted $(138,829) $216,630
========= ========
Weighted average number of common shares outstanding 367,520 356,148
Weighted average number of incremental shares in connection with
restricted stock and assumed exercise of stock options -- 11,776
Assumed conversion of subordinated debentures and notes -- --
--------- --------
Total 367,520 367,924
========= ========
Earnings (loss) per common and common equivalent share $ (.38) $ .59
========= ========
(1) The computation of diluted EPS for 2001 and 2000 excludes the assumed
conversion of the 1.87% and 1.8% Convertible Subordinated Notes, and for
2001 excludes the conversion of restricted stock and assumed exercise of
stock options because they were anti-dilutive.
2
