CREDIT AGREEMENT
BETWEEN
THE INTERPUBLIC GROUP OF COMPANIES, INC.
AND
LLOYDS BANK Plc
____________________
US$15,000,000
____________________
Dated as of July 3, 1995
PAGE
TABLE OF CONTENTS
SECTION PAGE
SECTION 1
INTERPRETATIONS AND DEFINITIONS
1.1 Definitions 1
1.2 Accounting Terms and Determinations 6
SECTION 2
THE LOANS
2.1 Commitment 7
2.2 Method of Borrowing 7
2.3 The Note 8
2.4 Maturity of Loans 8
2.5 Interest Rates 8
2.6 Fees 11
2.7 Optional Termination or Reduction of Commitment 11
2.8 Mandatory Termination or Reduction of Commitment 11
2.9 Optional Prepayments 12
2.10 General Provisions as to Payments 12
2.11 Computation of Interest and Fees 12
2.12 Funding Losses 12
2.13 Extension of Commitment 13
2.14 Sterling Option 13
2.15 Subsidiary Borrowers 14
SECTION 3
CONDITIONS OF LENDING
3.1 All Loans 16
3.2 Initial Loan 16
SECTION 4
CHANGE IN CIRCUMSTANCES AFFECTING LOANS
4.1 Basis for Determining Interest Rate Inadequate 18
4.2 Illegality 18
4.3 Increased Costs and Reduced Returns 18
SECTION 5
REPRESENTATIONS AND WARRANTIES
5.1 Corporate Existence and Power 21
5.2 Corporate and Governmental Authorization;
Contravention 21
5.3 Binding Effect 21
5.4 Financial Information 21
PAGE
5.5 Litigation 21
5.6 Compliance with ERISA 22
5.7 Taxes 22
5.8 Subsidiaries 22
SECTION 6
COVENANTS
6.1 Information 23
6.2 Maintenance of Property; Insurance 24
6.3 Conduct of Business and Maintenance of Existence 25
6.4 Compliance with Laws 25
6.5 Inspection of Property, Books and Records 25
6.6 Cash Flow to Total Borrowed Funds 26
6.7 Total Borrowed Funds to Consolidated Net Worth 26
6.8 Minimum Consolidated Net Worth 26
6.9 Negative Pledge 26
6.10 Consolidations, Mergers and Sales of Assets 27
6.11 Use of Proceeds 27
SECTION 7
EVENTS OF DEFAULT
7.1 Events of Default 29
SECTION 8
MISCELLANEOUS
8.1 Notices 32
8.2 Amendments and Waivers; Cumulative Remedies 32
8.3 Successors and Assigns 33
8.4 Expenses; Documentary Taxes; Indemnification 33
8.5 Withholding Taxes 34
8.6 Counterparts 35
8.7 Headings; Table of Contents 35
8.8 Governing Law 35
PAGE
CREDIT AGREEMENT
AGREEMENT dated as of July 3, 1995 between THE
INTERPUBLIC GROUP OF COMPANIES, INC., a Delaware corporation (the
"Borrower"), and LLOYDS BANK Plc (the "Bank").
SECTION I
INTERPRETATIONS AND DEFINITIONS
1.1 Definitions. The following terms, as used herein,
shall have the following respective meanings:
"Adjusted CD Rate" has the meaning set forth in Section
2.5(b) hereof.
"Adjusted London Interbank Offered Rate" has the
meaning set forth in Section 2.5(c) hereof.
"Applicable Lending Office" means, with respect to the
Bank, (i) in the case of Domestic Loans, its Domestic
Lending Office and (ii) in the case of Eurodollar Loans, its
Eurodollar Lending Office.
"Assessment Rate" has the meaning set forth in Section
2.5(b) hereof.
"Base Rate" means, for any day, a rate per annum equal
to the higher of (i) the rate established from time to time
by the Bank in the United States as its prime or reference
rate of interest, changes in which are to be effective from
the opening of business on the day such change is made and
(ii) the sum of (A) .5% plus (B) the overnight federal funds
rate for such day as published in the weekly statistical
release designated by the Board of Governors of the Federal
Reserve System as "H.15(519)" (or any successor publication
thereto).
"Base Rate Loan" means a Loan which the Borrower
specifies pursuant to Section 2.2 hereof shall be a Base
Rate Loan.
"Benefit Arrangement" means, at any time, an employee
benefit plan within the meaning of Section 3(3) of ERISA
which is not a Plan or a Multiemployer Plan and which is
maintained or otherwise contributed to by any member of the
ERISA Group.
"Cash Flow" means the sum of net income of the Borrower
and its Consolidated Subsidiaries (plus any amount by which
net income has been reduced by reason of the recognition of
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post-retirement and post-employment benefit costs prior to
the period in which such benefits are paid), depreciation
expenses, amortization costs and changes in deferred taxes,
provided that such sum shall not be adjusted for any
increase or decrease in deferred taxes resulting from Quest
& Associates, Inc., a Subsidiary of the Borrower, investing
in a portfolio of computer equipment leases (it being
understood that such increase or decrease in deferred taxes
relating to such investment shall not exceed $25,000,000).
"CD Base Rate" has the meaning set forth in Section
2.5(b) hereof.
"CD Loan" means a Loan which the Borrower specifies
pursuant to Section 2.2 hereof shall be a CD Loan.
"CD Margin" has the meaning set forth in Section 2.5(b)
hereof.
"Code" means the Internal Revenue Code of 1986, as
amended, and any successor statute thereto.
"Commitment" means the obligation of the Bank to lend
the amount set forth in Section 2.1 hereof, as such amount
may be reduced from time to time pursuant to Section 2.7
hereof.
"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which would be
consolidated with those of the Borrower in its consolidated
financial statements as of such date.
"Consolidated Net Worth" means at any date the
consolidated stockholders' equity of the Borrower and its
Consolidated Subsidiaries as such appear on the financial
statements of the Borrower determined in accordance with
generally accepted accounting principles (plus any amount by
which retained earnings has been reduced by reason of the
recognition of post-retirement and post-employment benefit
costs prior to the period in which such benefits are paid
and without taking into account the effect of cumulative
currency translation adjustments).
"Debt" of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed
money, including reimbursement obligations for letters of
credit, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase
price of property or services, except trade accounts payable
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arising in the ordinary course of business, (iv) all
obligations of such Person as lessee under capital leases,
(v) all Debt of others secured by a Lien on any asset of
such Person, whether or not such Debt is assumed by such
Person, and (vi) all Debt of others Guaranteed by such
Person, but in each case specified in (i) through (vi)
excludes obligations arising in connection with securities
repurchase transactions.
"Default" means any condition or event which
constitutes an Event of Default or which with the giving of
notice or lapse of time, or both, would become an Event of
Default.
"Dollars" and the sign "$" mean lawful money of the
United States of America.
"Domestic Business Day" means any day except a
Saturday, Sunday or other day on which commercial banks in
New York, New York are authorized by law to close.
"Domestic Lending Office" means the principal office of
the Bank located at the address set forth on the signature
pages hereof for its Domestic Lending Office, or such other
branch (or affiliate) located within the United States as
the Bank may hereafter designated as its Domestic Lending
Office.
"Domestic Loans" means CD Loans or Base Rate Loans or
both.
"Domestic Reserve Percentage" has the meaning set forth
in Section 2.5(b) hereof.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended.
"ERISA Group" means the Borrower and all members of a
controlled group of corporations and all trades or
businesses (whether or not incorporated) under common
control which, together with the Borrower, are treated as a
single employer under Section 414(b) or (c) of the Code.
"Eurodollar Business Day" means any Domestic Business
Day on which commercial banks in London are open for
international business (including dealings in Dollar
deposits).
"Eurodollar Lending Office" means the office of the
Bank located at the address set forth on the signature pages
hereof for its Eurodollar Lending Office, or such other
branch (or affiliate) of the Bank as it may hereafter
designate as its Eurodollar Lending Office.
PAGE
"Eurodollar Loan" means a Loan which the Borrower
specifies pursuant to Section 2.2 hereof shall be a
Eurodollar Loan.
"Eurodollar Margin" has the meaning set forth in
Section 2.5(c) hereof.
"Eurodollar Reserve Percentage" has the meaning set
forth in Section 2.5(c) hereof.
"Event of Default" has the meaning set forth in Section
7 hereof.
"Fixed CD Rate" has the meaning set forth in Section
2.5(b) hereof.
"Fixed Rate Loans" means CD Loans, Eurodollar Loans or
Money Market Rate Loans.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or
indirectly guaranteeing any Debt or other obligation of any
other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt or
other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, to maintain
financial statement conditions or otherwise) or (ii) entered
into for the purpose of assuring in any other manner the
obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect
thereof (in whole or in part), provided that the term
Guarantee shall not include endorsements for collection or
deposit in the ordinary course of business. The term
"Guarantee" used as a verb has a corresponding meaning.
"Interest Period" means: (1) with respect to each CD
Loan, at the Borrower's option, the period commencing on the
date of such Loan and ending 30, 60, 90 or 180 days
thereafter, (2) with respect to each Eurodollar Loan, at the
Borrower's option, the period commencing on the date of such
Loan and ending one, two, three or six months thereafter and
(3) with respect to each Base Rate Loan the period
commencing on the date of such Loan and ending 30 days
thereafter provided, that:
(a) any Interest Period which would otherwise end on a
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day which is not a Eurodollar Business Day shall be extended
to the next succeeding Eurodollar Business Day unless with
respect to a Eurodollar Loan such Eurodollar Business Day
falls in another calendar month, in which case such Interest
Period shall end on the next preceding Eurodollar Business
Day;
(b) with respect to a Eurodollar Loan, any Interest
Period which begins on the last Eurodollar Business Day of
the calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the
end of such Interest Period) shall, subject to clause (c)
below, end on the last Eurodollar Business Day of a calendar
month; and
(c) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date;
provided further, however, that if any such Interest Period
shall be less than 30 days, the Loan for such Interest
Period shall be a Base Rate Loan.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or other encumbrance
of any kind in respect of such asset. For purposes of this
Agreement, the Borrower or any subsidiary shall be deemed to
own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under
any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan" and "Loans" means a Domestic Loan, a Eurodollar
Loan, or a Money Market Rate Loan, as the context may
require.
"London Interbank Offered Rate" has the meaning set
forth in Section 2.5(c) hereof.
"Material Plan" means at any time a Plan or Plans
having aggregate unfunded benefit liabilities (within the
meaning of Section 4001(a)(18) of ERISA) in excess of
$25,000,000.
"Money Market Rate Loan" means a Loan made by the Bank
to the Borrower pursuant to Section 2.5(d) hereof.
"Multiemployer Plan" means at any time an employee
pension benefit plan that is a "multiemployer plan" within
the meaning of Section 4001(a)(3) of ERISA to which any
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member of the ERISA Group is then making or accruing an
obligation to make contributions or has within the preceding
five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA
Group during such five year period.
"Note" or "Notes" means the promissory note of the
Borrower, substantially in the form of Exhibits A and B
hereto evidencing the obligation of the Borrower to repay
the Loans.
"PBGC" means the Pension Benefit Guaranty Corporation
or any entity succeeding to any or all of its functions
under ERISA.
"Participant" has the meaning set forth in Section 8.3.
"Person" means an individual, a corporation, a
partnership, an association, a business trust or any other
entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Plan" means at any time a defined benefit pension plan
(other than a Multiemployer Plan) which is covered by Title
IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and either (i) is maintained,
or contributed to, by any member of the ERISA Group for
employees of any member of the ERISA Group or (ii) has at
any time within the preceding five years been maintained, or
contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from
time to time.
"Significant Subsidiary" or "Significant Group of
Subsidiaries" at any time of determination means any
Consolidated Subsidiary or group of Consolidated
Subsidiaries, respectively, which, individually or in the
aggregate, together with its or their subsidiaries, accounts
or account for more than 10% of the consolidated gross
revenues of the Borrower and its Consolidated Subsidiaries
for the most recently ended fiscal year or for more than 10%
of the total assets of the Borrower and its Consolidated
Subsidiaries as of the end of such fiscal year; provided
that in connection with any determination with respect to a
Significant Group of Subsidiaries under (x) Section 7(f),
there shall be a payment default, failure or other event
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(of the type described therein but without regard to the
principal amount of such obligation) of each Consolidated
Subsidiary included in such group, (y) Sections 7(g) and (h)
and the last sentence of Section 6.10, the condition or
event described therein shall exist with respect to each
Consolidated Subsidiary included in such group or (z)
Section 7(j), there shall be a final judgment (of the type
specified therein but without regard to the amount of such
judgment) rendered against each Consolidated Subsidiary
included in such group.
"Subsidiary" means any corporation or other entity of
which securities or other ownership interests having
ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions is
at the time directly or indirectly owned by the Borrower.
"Termination Date" means July 3, 1998 or such later
date to which the Commitment is extended in accordance with
Section 2.13 hereof.
"Total Borrowed Funds" means at any date, without
duplication, (i) all outstanding obligations of the Borrower
and its Consolidated Subsidiaries for borrowed money, (ii)
all outstanding obligations of the Borrower and its
Consolidated Subsidiaries evidenced by bonds, debentures,
notes or similar instruments and (iii) any outstanding
obligations of the type set forth in (i) or (ii) of any
other Person Guaranteed by the Borrower and its Consolidated
Subsidiaries, it being understood that the obligation to
repurchase securities transferred pursuant to a securities
repurchase agreement shall not be deemed to give rise to any
amount of Total Borrowed Funds pursuant to this definition.
1.2 Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein
shall be interpreted, all accounting determinations hereunder
shall be made, and all financial statements required to be
delivered hereunder shall be prepared, in accordance with
generally accepted accounting principles as in effect from time
to time, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants)
with the most recent audited consolidated financial statements of
the Borrower and its Consolidated Subsidiaries delivered to the
Bank.
PAGE
SECTION 2
THE LOANS
2.1 Commitment. At any time prior to the Termination
Date the Bank agrees, on the terms and conditions set forth in
this Agreement, to lend to the Borrower from time to time amounts
not exceeding in the aggregate at any one time outstanding the
principal amount of $15,000,000 (the "Commitment"). Each Loan
under this Section 2.1 shall be in the principal amount of
$1,000,000 (except that any such Loan may be in the amount of the
unused Commitment) or any larger multiple thereof. During such
period and within the foregoing limits, the Borrower may borrow
under this Section 2.1, repay or to the extent permitted by
Section 2.9 hereof prepay Loans and reborrow under this Section
2.1.
2.2 Method of Borrowing.
(a) With respect to each Loan made pursuant to Section
2.1 hereof, the Borrower shall give the Bank notice prior to
11:00 a.m. on the drawdown date in the case of a Base Rate
Loan, at least one Domestic Business Day's notice in the
case of a CD Loan, or at least three Eurodollar Business
Days' notice in the case of a Eurodollar Loan, specifying:
(i) the date of such Loan, which shall be a Domestic
Business Day in the case of a Domestic Loan and a
Eurodollar Business Day in the case of a Eurodollar
Loan;
(ii) the principal amount of such Loan;
whether the Loan is to be a Base Rate Loan, a CD Loan
or a Eurodollar Loan (and, if such Loan is to be a
Eurodollar Loan, whether Section 2.14 is to be
applicable thereto);
(iii) in the case of a Fixed Rate Loan, the duration of
the Interest Period applicable thereto, subject to the
definition of Interest Period; and
(iv) whether Section 2.15 is to be applicable to such
Loan.
(b) On the date of each Loan the Bank will make the
proceeds thereof available to the Borrower at the Domestic
Lending Office.
PAGE
(c) If the Bank makes a new Loan hereunder on a day
which the Borrower is to repay all or any part of an
outstanding Loan, the Bank shall apply the proceeds of its
new Loan to make such repayment and only an amount equal to
the difference (if any) between the amount being borrowed
and the amount being repaid shall be made available by the
Bank to the Borrower as provided in subsection (b) of this
Section or remitted by the Borrower to the Bank as provided
in Section 2.10 hereof, as the case may be.
2.3 The Note.
(a) The Loans shall be evidenced by a single Note
payable to the order of the Bank for the account of its
Applicable Lending Office in an amount equal to the
aggregate unpaid principal amount of the Loans. The Money
Market Rate Loans shall be evidenced by the Money Market
Rate Note, a form of which is attached hereto as Exhibit B.
(b) The Bank shall record and prior to any transfer,
if permitted, of its Note, shall endorse on the schedule
forming a part thereof appropriate notations evidencing the
date, the type, the amount and the maturity of each Loan to
be evidenced by the Note and the date and amount of each
payment of principal made by the Borrower with respect
thereto; provided that the failure of the Bank to make any
such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Note and,
further provided, the Bank shall make such additions and
deletions as the Borrower may request in order to correct
any mistakes. The Bank is hereby irrevocably authorized by
the Borrower so to endorse the Note and to attach to and
make a part of the Note a continuation of any such schedule
as and when required.
2.4 Maturity of Loans. Each Loan shall mature, and
the principal amount thereof shall be due and payable, on the
last day of the Interest Period applicable to such Loan. Each
Money Market Rate Loan shall mature at such time as may be agreed
to by the Bank and the Borrower.
2.5 Interest Rates.
(a) Each Base Rate Loan shall bear interest on the
outstanding principal amount thereof, for each day from the
date such Loan is made until it becomes due, at a rate per
annum equal to the Base Rate. Such interest shall be
payable for each Interest Period on the last day thereof.
Any overdue principal of and, to the extent permitted by
law, overdue interest on the Base Rate Loans shall bear
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interest during such overdue period for each day until paid
at a rate per annum equal to the sum of 1% plus the
otherwise applicable rate for such day, payable on demand of
the Bank.
(b) Each CD Loan shall bear interest on the
outstanding principal amount thereof, for each Interest
Period applicable thereto, at a rate per annum equal to the
applicable Fixed CD Rate; provided that if any CD Loan or
any portion thereof shall, as a result of clause (c) of the
definition of Interest Period, have an Interest Period of
less than 30 days, such portion shall bear interest during
such Interest Period at the rate applicable to Base Rate
Loans during such Period. Such interest shall be payable for
each Interest Period on the last day thereof and, if such
Interest Period is longer than 90 days, at intervals of 90
days after the first day thereof. Any overdue principal of
and, to the extent permitted by law, overdue interest on the
CD Loans shall bear interest during such overdue period for
each day until paid at a rate per annum equal to the sum of
1% plus the higher of (i) the Fixed CD Rate applicable to
such Loan and (ii) the rate applicable to Base Rate Loans
for such day, payable on demand of the Bank.
The "Fixed CD Rate" applicable to any CD Loan for any
Interest Period means a rate per annum equal to the sum of
the CD Margin plus the applicable Adjusted CD Rate.
The "CD Margin" means (i) .4250%, if at the end of each
of the two most recently completed fiscal quarters the
Borrower's ratio of Total Borrowed Funds to Consolidated Net
Worth was equal to or less than .40 to 1 and the Borrower's
ratio to Cash Flow to Total Borrowed Funds was equal to or
greater than .50 to 1; or (ii) .5250%, if (a) the conditions
of clause (i) have not been satisfied and (b) at the end of
each of the two most recently completed fiscal quarters the
Borrower's ratio of Total Borrowed Funds to Consolidated Net
Worth was equal to or less than .70 to 1 and the Borrower's
ratio of Cash Flow to Total Borrowed Funds was equal to or
greater than .35 to 1; or (iii) .6250%, if the conditions
set forth in both clauses (i) and (ii) are not satisfied.
PAGE
The "Adjusted CD Rate" applicable to any Interest
Period means a rate per annum determined pursuant to the
following formula:
ACDR = CDBR + AR
________
1 - DRP
ACDR = Adjusted CD Rate for such Interest Period
CDBR = CD Base Rate for such Interest Period
AR = Assessment Rate
DRP = Domestic Reserve Percentage
The "CD Base Rate" means for any Interest Period the
prevailing per annum rate of interest as reasonably
determined by the Bank (rounded upward, if necessary, to the
next higher 1/100 of 1%) bid at 11:00 a.m. (New York time)
(or as soon thereafter as practicable) on the first day of
such Interest Period by two or more certificate of deposit
dealers of recognized standing selected by the Bank for the
purchase at face value of US dollar certificates of deposit
issued by major New York banks in an amount comparable to
the principal amount of the CD Loan to which such Interest
Period applies and with a maturity comparable to such
Interest Period.
The "Domestic Reserve Percentage" means for any day,
that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including, without
limitation, any basic, supplemental or emergency reserves)
for a member bank of the Federal Reserve System with
deposits exceeding five billion Dollars in respect of new
non-personal time deposits in Dollars having a maturity
comparable to the related Interest Period and in an amount
of $100,000 or more. The Fixed CD Rate shall be adjusted
automatically on and as of the effective date of any change
in the Domestic Reserve Percentage.
"Assessment Rate" means for any Interest Period the net
annual assessment rate (rounded upwards, if necessary, to
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the next higher 1/100 of 1%) actually incurred by the Bank
to the Federal Deposit Insurance Corporation (or any
successor) for such Corporation's (or such successor's)
insuring time deposits at offices of the Bank in the United
States during the most recent period for which such rate has
been determined prior to the commencement of such Interest
Period.
(c) Each Eurodollar Loan shall bear interest on the
unpaid principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum of
the Eurodollar Margin plus the applicable Adjusted London
Interbank Offered Rate. Such interest shall be payable for
each Interest Period on the last day thereof and, if such
Interest Period is longer than three months, at intervals of
three months after the first day thereof. Any overdue
principal of and, to the extent permitted by law, overdue
interest on the Eurodollar Loans shall bear interest for
each day until paid at a rate per annum equal to the sum of
1% plus the higher of (i) the rate of interest applicable to
such Loan and (ii) the rate applicable to Base Rate Loans
for such day, payable on demand of the Bank.
The "Adjusted London Interbank Offered Rate" applicable
to any Interest Period means a rate per annum equal to the
quotient obtained (rounded upwards, if necessary, to the
next higher 1/100 of 1%) by dividing (i) the applicable
London Interbank Offered Rate by 1.00 minus the Eurodollar
Reserve Percentage.
The "London Interbank Offered Rate" applicable to any
Interest Period means the rate per annum at which deposits
in Dollars are offered to the Bank in the London interbank
market at approximately 11:00 a.m. (London time) two
Eurodollar Business Days prior to the first day of such
Interest Period in an amount approximately equal to the
principal amount of the Eurodollar Loan to which such
Interest Period is to apply and for a period of time
comparable to such Interest Period.
The "Eurodollar Reserve Percentage" means for any day
that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining
the maximum reserve requirement for a member bank of the
Federal Reserve System with deposits exceeding five billion
dollars in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes
deposits by reference to which the interest rate on
Eurodollar Loans is determined or any category of
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extensions of credit or other assets which includes loans by
a non-United States office of the Bank to United States
residents). The Adjusted London Interbank Offered Rate
shall be adjusted automatically on and as of the effective
date of any change in the Eurodollar Reserve Percentage.
The "Eurodollar Margin" means (i) .30%, if at the end
of each of the two most recently completed fiscal quarters
the Borrower's ratio of Total Borrowed Funds to Consolidated
Net Worth was equal to or less than .40 to 1 and the
Borrower's ratio of Cash Flow to Total Borrowed Funds was
equal to or greater than .50 to 1; or (ii) .40%, if (a) the
conditions of clause (i) have not been satisfied and (b) at
the end of each of the two most recently completed fiscal
quarters the Borrower's ratio of Total Borrowed Funds to
Consolidated Net Worth was equal to or less than .70 to 1
and the Borrower's ratio of Cash Flow to Total Borrowed
Funds was equal to or greater than .35 to 1; or (iii) .50%,
if the conditions set forth in both clauses (i) and (ii) are
not satisfied.
(d) Each Money Market Rate Loan shall be made by the
Bank to the Borrower upon such terms and conditions and in
such amounts as may be agreed upon from time to time by the
Bank and the Borrower. Each Money Market Rate Loan shall be
evidenced by a Note in the form of Exhibit B hereto.
2.6 Fees. The Borrower shall pay to the Bank a
commitment fee computed on the unused portion of the Commitment.
The per annum commitment fee shall be on any date from and after
the date hereof (i) .125% of the unused portion of the
Commitment, if at the end of each of the two most recently
completed fiscal quarters the Borrower's ratio of Total Borrowed
Funds to Consolidated Net Worth was equal to or less than .40 to
1 and the Borrower's ratio of Cash Flow to Total Borrowed Funds
was equal to or greater than .50 to 1; or (ii) .15% of the unused
portion of the Commitment, if (a) the conditions of clause (i)
have not been satisfied and (b) at the end of each of the two
most recently completed fiscal quarters the Borrower's ratio of
Total Borrowed Funds to Consolidated Net Worth was equal to or
less than .70 to 1 and the Borrower's ratio of Cash Flow to Total
Borrowed Funds was equal to or greater than .35 to 1; or (iii)
.180% of the unused portion of the Commitment, if the conditions
set forth in clauses (i) and (ii) are not satisfied. Such fees
shall accrue from the date hereof to and including the
Termination Date and shall be payable quarterly in arrears on the
last day of each June, September, December and March and on any
date on which the Commitment is terminated or otherwise reduced.
PAGE
2.7 Optional Termination or Reduction of Commitment.
The Borrower may, upon at least three Domestic Business Days'
notice to the Bank, terminate at any time or reduce from time to
time the unused portion of the Commitment. Any such reduction of
the Commitment shall be in the amount of $1,000,000 or any larger
multiple thereof. If the Commitment is terminated in its
entirety, the accrued commitment fee shall be payable on the
effective date of such termination.
2.8 Mandatory Termination or Reduction of Commitment.
If not previously terminated by the Borrower pursuant to Section
2.7, the Commitment shall terminate on the Termination Date, and
any Loans then outstanding (together with accrued interest
thereon) shall be due and payable on such date.
2.9 Optional Prepayments.
(a) The Borrower may, upon at least one Domestic
Business Day's notice to the Bank, prepay the Base Rate
Loans without premium or penalty in whole at any time or
from time to time in part in an amount equal to $1,000,000
or any multiple of $1,000,000 in excess thereof (or such
lesser amount as applicable if less than $1,000,000 is
outstanding) by paying the principal amount being prepaid
together with accrued interest thereon to the date of
prepayment.
(b) Except as provided in Section 4.2 hereof, the
Borrower may not prepay all or any portion of the principal
amount of any Fixed Rate Loan prior to the maturity thereof.
2.10 General Provisions as to Payments. The Borrower
shall make each payment of principal of, and interest on, the
Loans and of commitment fees hereunder not later than 11:00 a.m.
(local time) on the date when due in funds immediately available
at the Applicable Lending Office for the account of (i) the
Domestic Lending Office in the case of Domestic Loans and Money
Market Rate Loans or (ii) the Eurodollar Lending Office in the
case of Eurodollar Loans. Whenever any payment of principal of,
or interest on, the Domestic Loans, the Money Market Rate Loans,
the commitment fee shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to
the next succeeding Domestic Business Day. Whenever any payment
of principal of, or interest on, the Eurodollar Loans shall be
due on a day which is not a Eurodollar Business Day, the date for
payment thereof shall be extended to the next succeeding
Eurodollar Business Day unless as a result thereof it would fall
in the next calendar month, in which case it shall be advanced to
the next preceding Eurodollar Business Day. If the date for any
payment of principal is extended by operation of law or
otherwise, interest shall be payable for such extended time.
PAGE
2.11 Computation of Interest and Fees. Interest on
the Loans bearing interest based on clause (i) of the definition
of Base Rate shall be computed on the basis of a year of 365 or
366 days, as the case may be, and paid for actual days elapsed.
Interest on Loans bearing interest based on clause (ii) of the
definition of Base Rate, the CD Loans, the Eurodollar Loans, the
Money Market Rate Loans and the calculation of the commitment fee
shall be computed on the basis of a year of 360 days and paid for
actual days elapsed.
2.12 Funding Losses. If the Borrower makes any
payment of principal with respect to any Fixed Rate Loan
(pursuant to Section 4 or Section 7 or otherwise) on any day
other than the last day of an Interest Period applicable to such
Loan, or if the Borrower fails to borrow any Fixed Rate Loan
after notice has been given to the Bank in accordance with
Section 2.2 hereof, the Borrower shall reimburse the Bank on
demand for any resulting loss or expense incurred by it (or by
any existing or prospective Participant in the related Loan)
including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties; provided
that the Bank shall have delivered to the Borrower a certificate
by a Bank officer as to the amount of such loss.
2.13 Extension of Commitment. Not more than 60 nor
less than 45 days prior to each date which is either the second
or third anniversary of this Agreement, the Borrower may request
in writing that the Bank extend the Commitment for an additional
period of one year from the then current Termination Date. If
the Bank, in its sole discretion, decides to grant such request,
it shall so notify the Borrower not less than 30 days before the
then current Termination Date in writing, whereupon the
Commitment shall be extended for an additional period of one year
from the then current Termination Date, and the term "Termination
Date" shall thereafter refer to the date that the Commitment, as
so extended, will terminate. If not extended as provided in this
Section 2.13, the Commitment will automatically terminate on the
then current Termination Date without further action by the
Borrower or the Bank.
2.14 Sterling Option.
(a) Designation of Loan. Any notice of a Eurodollar
Loan borrowing pursuant to Section 2.2(a) may include, at
the option of the Borrower, a designation that the terms and
provisions of this Section 2.14 shall be applicable to such
Eurodollar Loan. Any Eurodollar Loan as to which such a
designation is made is referred to herein as a "Sterling
Loan". Except to the extent inconsistent with any term or
provision of this Section 2.14, the terms and provisions of
PAGE
this Agreement shall apply to each Sterling Loan to the same
extent as applicable to any other Eurodollar Loan.
(b) Payments. Each Sterling Loan shall be denominated
in pounds sterling, the lawful money of England ("Pounds
Sterling"), and on the date of each Sterling Loan the
proceeds thereof shall be made available to the Borrower in
Pounds Sterling at the Eurodollar Lending Office. All
payments on account of the principal of and interest on any
Sterling Loan shall be made exclusively in Pounds Sterling
at the Eurodollar Lending Office.
(c) Commitment. Each Sterling Loan shall be in the
principal amount of 1,000,000 Pounds Sterling (except that
any Sterling Loan may be in the amount of the unused
Commitment) or any larger multiple thereof. For purposes of
computing the amount from time to time of the unused
Commitment, the outstanding principal amount of a Sterling
Loan at any time shall be deemed to be equal to the amount
in Dollars that would be required to purchase Pounds
Sterling in the amount of such outstanding Sterling Loan, on
the date that the Borrower's notice was given pursuant to
Section 2.2(a) with respect to such Sterling Loan, based
upon the average spot buying rate at which the Bank offers
to exchange Dollars for Pounds Sterling at approximately
11:00 a.m. (London time) on such date.
(d) Interest. For purposes of the computation of the
interest rate applicable to any Interest Period for any
Sterling Loan, the London Interbank Offered Rate shall mean
the rate per annum at which deposits in Pounds Sterling are
offered to the Bank in the London Interbank market at
approximately 11:00 a.m. (London time) on the first day of
such Interest Period in an amount approximately equal to the
principal amount of the Sterling Loan to which such Interest
Period is to apply and for a period of time comparable to
such Interest Period.
2.15 Subsidiary Borrowers.
(a) Designation of Subsidiary Borrower. Any notice of
a borrowing pursuant to Section 2.2(a) may include, at the
option of the Borrower, a designation that (i) the terms and
provisions of this Section 2.15 shall be applicable to such
Loan, and (ii) one of Xxxx International Limited, Xxxx &
Partners Inc. or Interpublic Ltd. shall be the borrower with
respect to such Loan. Any Loan as to which such a
designation is made is referred to herein as a "Subsidiary
Loan" and any Subsidiary so designated as a borrower is
PAGE
referred to herein as a "Subsidiary Borrower". Except to
the extent inconsistent with any term or provision of this
Section 2.15, the terms and provisions of this Agreement
shall apply to each Subsidiary Loan (and to each promissory
note evidencing a Subsidiary Loan) to the same extent as
applicable to any other Loan (and any Note).
(b) Funding and Notes; Commitment. On the date of
each Subsidiary Loan, the Bank will make the proceeds
thereof available to the Subsidiary Borrower at the
Applicable Lending Office. Each Subsidiary Loan shall be
evidenced by a separate promissory note of the Subsidiary
Borrower, substantially in the form of Exhibit C hereto,
payable to the order of the Bank for the account of its
Applicable Lending Office ("Subsidiary Note"). For purposes
of computing the amount from time to time of the unused
Commitment, the outstanding principal amount of all
Subsidiary Loans at any time shall be deemed to constitute
outstanding Loans of like principal amount under this
Agreement.
(c) Payments, Prepayments, Sterling Option, Funding
Losses, Etc. The terms and provisions of Sections 2.9,
2.10, 2.12, 2.14, 4 and 8.3 of this Agreement are intended
to be applicable to Subsidiary Loans (and the Subsidiary
Notes), provided that references to the Borrower's rights
and obligations therein (including rights and obligations in
respect of notices) shall, in the case of any Subsidiary
Loan, be deemed to be references to the Subsidiary
Borrower's rights and obligations. Except as provided in
the preceding sentence, all references to the "Borrower" in
this Agreement shall be deemed to be references to The
Interpublic Group of Companies, Inc.
(d) Conditions to Subsidiary Loans. In addition to
the conditions set forth in Section 3, the obligation of the
Bank to make the initial Subsidiary Loan to any Subsidiary
Borrower shall be subject to the receipt by the Bank of the
following:
(i) a duly executed Subsidiary Note of such Subsidiary
Borrower, with the duly executed guaranty of Borrower
affixed thereto; and
(ii) an opinion of counsel to such Subsidiary Borrower
to the effect that (A) such Subsidiary Borrower is a
corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of
incorporation, (B) the execution, delivery and
performance by such Subsidiary Borrower of the
PAGE
Subsidiary Note are within the Subsidiary Borrower's
corporate powers and have been duly authorized by all
necessary corporate action, and (C) the Subsidiary Note of
such Subsidiary Borrower constitutes a valid and binding
obligation of the Subsidiary Borrower.
Each borrowing by a Subsidiary Borrower shall be deemed to
be a representation and warranty by the Borrower on the date
of such Subsidiary Loan as to the matters specified in
clause (ii)(A), (ii)(B) and (ii) (C) above.
(e) Notices. Notices, requests, demands or
communications to any Subsidiary Borrower shall be delivered
or addressed to the Borrower as provided in Section 8.1(a).
PAGE
SECTION 3
CONDITIONS OF LENDING
The obligation of the Bank to make each Loan hereunder
is subject to the performance by the Borrower of all its
obligations under this Agreement and to the satisfaction of the
following further conditions:
3.1 All Loans. In the case of each Loan hereunder,
including the initial Loan:
(a) receipt by the Bank of the notice from the
Borrower required by Section 2.2 hereof;
(b) the fact that immediately after the making of the
Loan no Default with respect to Sections 6.1(d), 6.6, 6.7,
6.8, 6.9 or 6.10 or Event of Default shall have occurred and
be continuing, except that in the case of any Loan which,
after the application of proceeds thereof, results in no net
increase in the outstanding principal amount of Loans made
by the Bank, the fact that immediately after the making of
the Loan, no Event of Default shall have occurred and be
continuing;
(c) the fact that the representations and warranties
contained in this Agreement shall be true on and as of the
date of the Loan (except, in the case of any Loan which,
after the application of the proceeds thereof, results in no
net increase in the outstanding principal amount of Loans
made by the Bank, the representations and warranties set
forth in Sections 5.4(B) and 5.5 so long as the Borrower has
disclosed to the Bank any matter which would cause any such
representation to be untrue on the date of such Loan); and
(d) receipt by the Bank of such other documents,
evidence, materials and information with respect to the
matters contemplated hereby as the Bank may reasonably
request.
Each borrowing hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of such
Loan as to the facts specified in (b) and (c) of this Section.
3.2 Initial Loan. In the case of the initial Loan:
(a) receipt by the Bank of a duly executed Note;
(b) receipt by the Bank of an opinion of counsel to
the Borrower as to the matters referred to in Sections 5.1,
PAGE
5.2, 5.3, 5.5 and 5.8 hereof, and covering such other
matters as the Bank may reasonably request, dated the date
of such Loan, satisfactory in form and substance to the
Bank;
(c) receipt by the Bank of certified copies of all
corporate action taken by the Borrower to authorize the
execution, delivery and performance of this Agreement and
the Note, and the Loans hereunder and such other corporate
documents and other papers as the Bank may reasonably
request;
(d) receipt by the Bank of a certificate of a duly
authorized officer of the Borrower as to the incumbency, and
setting forth a specimen signature, of each of the persons
(i) who has signed this Agreement on behalf of the Borrower;
(ii) who will sign the Note on behalf of the Borrower; and
(iii) who will, until replaced by other persons duly
authorized for that purpose, act as the representatives of
the Borrower for the purpose of signing documents in
connection with this Agreement and the transactions
contemplated hereby; and
(e) receipt by the Bank of a certificate of a duly
authorized officer of the Borrower to the effect set forth
in Sections 3.1(b) and 3.1(c) hereof.
PAGE
SECTION 4
CHANGE IN CIRCUMSTANCES AFFECTING LOANS
4.1 Basis for Determining Interest Rate Inadequate.
If on or prior to the first day of any Interest Period deposits
in Dollars (in the applicable amounts) are not being offered to
the Bank in the relevant market for such Interest Period, the
Bank shall forthwith give notice thereof to the Borrower,
whereupon the obligations of the Bank to make CD Loans or
Eurodollar Loans, as the case may be, shall be suspended until
the Bank notifies the Borrower that the circumstances giving rise
to such suspension no longer exist. Unless the Borrower notifies
the Bank at least two Domestic Business Days before the date of
any Fixed Rate Loan for which a notice of borrowing has
previously been given that it elects not to borrow on such date,
such Loan shall instead be made as a Base Rate Loan or the notice
of borrowing may be withdrawn.
4.2 Illegality. If, after the date of this Agreement,
the adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or
administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Bank (or its
Eurodollar Lending Office) with any request or directive (whether
or not having the force of law) of any such authority, central
bank or comparable agency shall make it unlawful or impossible
for the Bank (or its Eurodollar Lending Office) to make, maintain
or fund its Eurodollar Loans, the Bank shall forthwith so notify
the Borrower, whereupon the Bank's obligation to make Eurodollar
Loans shall be suspended. Before giving any notice to the
Borrower pursuant to this Section 4.2, the Bank will designate a
different Eurodollar Lending Office if such designation will
avoid the need for giving such notice and will not, in the
judgment of the Bank, be otherwise disadvantageous to the Bank.
If the Bank shall determine that it may not lawfully continue to
maintain and fund any of its outstanding Eurodollar Loans to
maturity and shall so specify in such notice, the Borrower shall
immediately prepay in full the then outstanding principal amount
of each such Eurodollar Loan, together with accrued interest
thereon.
4.3 Increased Costs and Reduced Returns.
(a) If, after the date hereof, the adoption of any
applicable law, rule or regulation, or any change therein,
or any change in the interpretation or administration
thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or
PAGE
administration thereof or compliance by the Bank (or its
Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such
authority, central bank or comparable agency:
(i) shall subject the Bank (or its Applicable Lending
Office) to any tax, duty or other charge with respect
to its obligation to make Fixed Rate Loans, its Fixed
Rate Loans, or its Note, or shall change the basis of
taxation of payments to the Bank (or its Applicable
Lending Office) of the principal of or interest on its
Fixed Rate Loans or in respect of any other amounts due
under this Agreement, in respect of its Fixed Rate
Loans or its obligation to make Fixed Rate Loans,
(except for changes in the rate of tax on the overall
net income of the Bank or its Applicable Lending Office
imposed by the jurisdiction in which the Bank's
principal executive office or Applicable Lending Office
is located); or
(ii) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement
(including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System, but
excluding (A) with respect to any CD Loan any such
requirement included in an applicable Domestic Reserve
Percentage and (B) with respect to any Eurodollar Loan
any such requirement included in an applicable
Eurodollar Reserve Percentage) against assets of,
deposits with or for the account of, or credit extended
by, the Bank (or its Applicable Lending Office) or
shall impose on the Bank (or its Applicable Lending
Office) or on the United States market for certificates
of deposit or the London interbank market any other
condition affecting its obligation to make Fixed Rate
Loans, its Fixed Rate Loans or its Note;
and the result of any of the foregoing is to increase the
cost to the Bank (or its Applicable Lending Office) of
making or maintaining any Fixed Rate Loan, or to reduce the
amount of any sum received or receivable by the Bank (or its
Applicable Lending Office) under this Agreement or under its
Note with respect thereto, by an amount deemed by the Bank
to be material, then, within 15 days after demand by the
Bank, the Borrower agrees to pay to the Bank such additional
amount or amounts as will compensate the Bank for such
increased cost or reduction.
PAGE
(b) If the Bank shall have determined that
theadoption, after the date hereof, of any applicable law,
rule or regulation regarding capital adequacy, or any change
therein, or any change in the interpretation or
administration thereof by any governmental authority,
central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by
the Bank (or its Applicable Lending Office) with any request
or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank
or comparable agency, has or would have the effect of
reducing the rate of return on the Bank's capital as a
consequence of its obligations hereunder to a level below
that which the Bank could have achieved but for such
adoption, change or compliance (taking into consideration
the Bank's policies with respect to capital adequacy) by an
amount deemed by the Bank to be material, then from time to
time, within 15 days after demand by the Bank, the Borrower
shall pay to such Bank such additional amount or amounts as
will compensate the Bank for such reduction.
(c) The Bank will promptly notify the Borrower of any
event of which it has knowledge, occurring after the date
hereof, which will entitle the Bank to compensation pursuant
to this Section and will designate a different Applicable
Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in
the judgment of the Bank, be otherwise disadvantageous to
the Bank. A certificate by an officer of the Bank claiming
compensation under this Section and setting forth the
additional amount or amounts to be paid to it hereunder
shall, in the absence of manifest error, constitute prima
facie evidence of such amount. In determining such amount,
the Bank may use any reasonable averaging and attribution
methods.
PAGE
SECTION 5
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Bank
that:
5.1 Corporate Existence and Power. The Borrower is a
corporation duly organized, validly existing and in good standing
under the laws of the State of its incorporation, and has all
corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its
business as now conducted.
5.2 Corporate and Governmental Authorization;
Contravention. The execution, delivery and performance by the
Borrower of this Agreement and the Note are within the Borrower's
corporate powers, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or
filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of
incorporation or by-laws of the Borrower or of any judgment,
injunction, order, decree, material agreement or other instrument
binding upon the Borrower or result in the creation or imposition
of any Lien on any asset of the Borrower or any of its
Consolidated Subsidiaries.
5.3 Binding Effect. This Agreement constitutes a
valid and binding agreement of the Borrower and the Notes, when
executed and delivered in accordance with this Agreement, will
constitute a valid and binding obligation of the Borrower.
5.4 Financial Information.
(a) The consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as at December 31, 1994 and
the related consolidated statements of income and retained
earnings and cash flows of the Borrower and its Consolidated
Subsidiaries for the fiscal year then ended, certified by
Price Waterhouse, certified public accountants, and set
forth in the Borrower's most recent Annual Report on Form
10-K, a copy of which has been delivered to the Bank, fairly
present in conformity with generally accepted accounting
principles, the consolidated financial position of the
Borrower and its Consolidated Subsidiaries at such date and
the consolidated results of operations for such fiscal year;
(b) Since December 31, 1994 there has been no material
adverse change in the business, financial position or
results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole.
PAGE
5.5 Litigation. There is no action, suit or
proceeding pending against, or to the knowledge of the Borrower
threatened against, the Borrower 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 which would materially
adversely affect the business, consolidated financial position or
consolidated results of operations of the Borrower and its
Consolidated Subsidiaries taken as a whole or which in any manner
draws into question the validity of this Agreement or the Notes.
5.6 Compliance with ERISA. Each member of the ERISA
Group has fulfilled its obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan and is
in compliance in all material respects with the presently
applicable provisions of ERISA and the Code except where the
failure to comply would not have a material adverse effect on the
Borrower and its Consolidated Subsidiaries taken as a whole. No
member of the ERISA Group 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.
5.7 Taxes. United States Federal income tax returns
of the Borrower and its Consolidated Subsidiaries have been
examined and closed through the fiscal year ended December 31,
1987. The Borrower 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 Borrower or any Consolidated
Subsidiary, to the extent that such assessment has become due.
The charges, accruals and reserves on the books of the Borrower
and its Consolidated Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Borrower,
adequate except for those which are being contested in good faith
by the Borrower.
5.8 Subsidiaries. Each of the Borrower'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 as now conducted, all to the
extent material to the Borrower and its Subsidiaries taken as a
whole.
PAGE
SECTION 6
COVENANTS
So long as the Commitment shall be in effect or the
Note is outstanding, the Borrower agrees that:
6.1 Information. The Borrower will deliver to the
Bank:
(a) as soon as available and in any event within 95
days after the end of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at the end of such year, and
consolidated statements of income and retained earnings and
statement of cash flows of the Borrower and its Consolidated
Subsidiaries for such year, setting forth in each case in
comparative form the figures for the preceding fiscal year,
all reported on by Price Waterhouse or other independent
certified public accountants of nationally recognized
standing;
(b) 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 Borrower, an unaudited consolidated
balance sheet of the Borrower and its Consolidated
Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and retained
earnings and statement of cash flows of the Borrower and its
Consolidated Subsidiaries for such quarter and for the
portion of the Borrower's fiscal year ended at the end of
such quarter setting forth in each case in comparative form
the figures for the corresponding quarter and the
corresponding portion of the Borrower's previous fiscal
year, all certified (subject to changes resulting from
year-end adjustments) as to fairness of presentation, in
conformity with generally accepted accounting principles
(other than as to footnotes) and consistency (except to the
extent of any changes described therein and permitted by
generally accepted accounting principles) by the chief
financial officer or the chief accounting officer of the
Borrower;
(c) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and (b)
above, a certificate of the chief financial officer or the
chief accounting officer of the Borrower (i) setting forth
in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements
of Sections 6.6 to 6.8, inclusive, on the date of such
financial statements and (ii) stating whether any Default
has occurred and is continuing on the date of such
certificate and, if any Default then has occurred and is
PAGE
continuing, setting forth the details thereof and the action
which the Borrower is taking or proposes to take with
respect thereto;
(d) within 10 days of the chief executive officer,
chief operating officer, principal financial officer or
principal accounting officer of the Borrower obtaining
knowledge of any event or circumstance known by such person
to constitute a Default, if such Default is then continuing,
a certificate of the principal financial officer or the
principal accounting officer of the Borrower setting forth
the details thereof and within five days thereafter, a
certificate of either of such officers setting forth the
action which the Borrower is taking or proposes to take with
respect thereto;
(e) promptly upon the mailing thereof to the
shareholders of the Borrower generally, copies of all
financial statements, reports and proxy statements so
mailed;
(f) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and
any registration statements on Form S-8 or its equivalent)
and annual, quarterly or monthly reports which the Borrower
shall have filed with the Securities and Exchange
Commission;
(g) if and when the chief executive officer, chief
operating officer, principal financial officer or principal
accounting officer of the Borrower obtains knowledge that
any member of the ERISA Group (i) has given or is required
to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan
which might constitute grounds for a termination of such
Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of
such reportable event given or required to be given to the
PBGC; (ii) has received notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that
any Multiemployer Plan is in reorganization, is insolvent or
has been terminated, a copy of such notice; or (iii) has
received notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer any Plan, a copy of such
notice;
(h) if at any time the value of all "margin stock" (as
defined in Regulation U) owned by the Borrower and its
Consolidated Subsidiaries exceeds (or would, following
application of the proceeds of an intended Loan hereunder,
exceed) 25% of the value of the total assets of the Borrower
PAGE
and its Consolidated Subsidiaries, in each case as
reasonably determined by the Borrower, prompt notice of such
fact; and
(i) from time to time such additional information
regarding the financial position or business of the Borrower
as the Bank may reasonably request;
provided, however, that the Borrower shall be deemed to have
satisfied its obligations under clauses (a) and (b) above if and
to the extent that the Borrower has provided to the Bank pursuant
to clause (f) the periodic reports on Forms 10-Q and 10-K
required to be filed by the Borrower with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of
1934, as amended, for the quarterly and annual periods described
in such clauses (a) and (b).
6.2 Maintenance of Property; Insurance.
(a) The Borrower will maintain or cause to be
maintained in good repair, working order and condition all
properties used and useful in the business of the Borrower
and each Consolidated Subsidiary and from time to time will
make or cause to be made all appropriate repairs, renewals
and replacement thereof, except where the failure to do so
would not have a material adverse effect on the Borrower and
its Consolidated Subsidiaries taken as a whole.
(b) The Borrower will maintain or cause to be
maintained, for itself and its Consolidated Subsidiaries,
all to the extent material to the Borrower and its
Consolidated Subsidiaries taken as a whole, 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 $10,000,000 and such other
insurance against risks of the kinds customarily insured
against by corporations of established reputation engaged in
the same or similar business and similarly situated, of such
type and in such amounts as are customarily carried under
similar circumstances.
6.3 Conduct of Business and Maintenance of Existence.
The Borrower will continue, and will cause each Consolidated
Subsidiary to continue, to engage predominantly in business of
the same general type as now conducted by the Borrower and its
Consolidated Subsidiaries, and, except as otherwise permitted by
Section 6.10 hereof, will preserve, renew and keep in full force
and effect, and will cause each Consolidated Subsidiary to
preserve, renew and keep in full force and effect their
respective corporate existence and their respective rights and
franchises necessary in the normal conduct of business, all to
the extent material to the Borrower and its Consolidated
Subsidiaries taken as a whole.
6.4 Compliance with Laws. The Borrower will comply,
and cause each Consolidated Subsidiary to comply, in all material
respects with all applicable laws, ordinances, rules,
regulations, and requirements of governmental authorities
(including, without limitation, ERISA and the rules and
regulations thereunder and all federal, state and local statutes,
laws or regulations or other governmental restrictions relating
to environmental protection, hazardous substances or the cleanup
or other remediation thereof) except where the necessity of
compliance therewith is contested in good faith by appropriate
proceedings or where the failure to comply would not have a
material adverse effect on the Borrower and its Consolidated
Subsidiaries taken as a whole.
6.5 Inspection of Property, Books and Records.
(a) The Borrower will keep, and will cause each
Consolidated Subsidiary to keep, proper books of record and
account in accordance with sound business practice so as to
permit its financial statements to be prepared in accordance
with generally accepted accounting principles; and will
permit representatives of the Bank at the Bank's expense to
visit and inspect any of the Borrower's properties, to
examine and make abstracts from any of the Borrower's
corporate books and financial records and to discuss the
Borrower's affairs, finances and accounts with the principal
officers of the Borrower and its independent public
accountants, all at such reasonable times and as often as
may reasonably be necessary to ensure compliance by the
Borrower with its obligations hereunder.
(b) With the consent of the Borrower (which consent
will not be unreasonably withheld) or, if an Event of
Default has occurred and is continuing, without the
requirement of any such consent, the Borrower will permit
representatives of the Bank, at the Bank's expense, to visit
and inspect any of the properties of and to examine the
corporate books and financial records of any Consolidated
Subsidiary and make copies thereof or extracts therefrom and
to discuss the affairs, finances and accounts of such
Consolidated Subsidiary with its and the Borrower's
principal officers and the Borrower's independent public
accountants, all at such reasonable times and as often as
the Bank may reasonably request.
6.6 Cash Flow to Total Borrowed Funds. The ratio of
Cash Flow to Total Borrowed Funds shall not be less than .30 for
any consecutive four quarters, such ratio to be calculated at the
end of each quarter on a trailing four quarter basis.
6.7 Total Borrowed Funds to Consolidated Net Worth.
Total Borrowed Funds will not exceed 85% of Consolidated Net
Worth at end of any quarter of any fiscal year.
6.8 Minimum Consolidated Net Worth. Consolidated Net
Worth will at no time be less than $550,000,000 plus 25% of the
consolidated net income of the Borrower at the end of each fiscal
quarter for each fiscal year commencing after the fiscal year
ending December 31, 1994.
6.9 Negative Pledge. Neither the Borrower nor any
Consolidated Subsidiary will create, assume or suffer to exist
any Lien on any asset now owned or hereafter acquired by it,
except for:
(a) Liens existing on the date hereof;
(b) 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;
(c) 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;
(d) any Lien on any asset of any corporation existing
at the time such corporation is merged into or consolidated
with the Borrower or a Consolidated Subsidiary and not
created in contemplation of such event;
(e) any Lien existing on any asset prior to the
acquisition thereof by the Borrower or a Consolidated
Subsidiary and not created in contemplation of such
acquisition;
(f) 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;
(g) Liens arising in the ordinary course of its
business which (i) do not secure Debt and (ii) do not in the
aggregate materially impair the operation of the business of
the Borrower and its Consolidated Subsidiaries, taken as a
whole;
(h) 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;
(i) 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
PAGE
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;
(j) 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 Consolidated Net Worth;
(k) any Liens on any asset of Quest & Associates,
Inc., a Subsidiary of Borrower, created in connection with
the August 1995 investment by Quest & Associates, Inc. in a
portfolio of computer equipment leases; and
(l) any Liens on property arising in connection with a
securities repurchase transaction.
6.10 Consolidations, Mergers and Sales of Assets. The
Borrower will not (i) consolidate or merge with or into any other
Person (other than a Subsidiary of the Borrower) unless the
Borrower's shareholders immediately before the merger or
consolidation are to own more than 70% of the combined voting
power of the resulting entity's voting securities or (ii) sell,
lease or otherwise transfer all or substantially all of the
Borrower's business or assets to any other Person (other than a
Subsidiary of the Borrower). The Borrower will not permit any
Significant Subsidiary or (in a series of related transactions)
any significant Group of Subsidiaries to consolidate with, merge
with or into or transfer all of any substantial part of its
assets to any Person other than the Borrower or a Subsidiary of
the Borrower.
6.11 Use of Proceeds. The proceeds of the Loans will
be used for general corporate purposes, including the making of
acquisitions. No part of the proceeds of any Loan hereunder will
be used, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate of buying or carrying any
"Margin stock" in violation of Regulation U. If requested by the
Bank, the Borrower will furnish to the Bank in connection with
any Loan hereunder a statement in conformity with the
requirements of Federal Reserve Form U-1 referred to in
Regulation U.
PAGE
SECTION 7
EVENTS OF DEFAULT
7.1 Events of Default. If any one or more of the
following events ("Events of Default") shall have occurred and be
continuing:
(a) the Borrower shall fail to pay (i) any principal
of any Loan when due or (ii) interest on any Loan or any
commitment fee within four days after the same has become
due; or
(b) any Subsidiary Borrower shall fail to pay any
principal of or interest on any Subsidiary Loan when due and
such failure shall not be remedied by such Subsidiary
Borrower or the Borrower within four Domestic Business Days
after written notice thereof has been given to such
Subsidiary Borrower and the Borrower by the Bank; or
(c) the Borrower shall fail to observe or perform any
covenant contained in Section 6.1(d) or Sections 6.6 to 6.8
or 6.10 hereof; or
(d) the Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement (other
than those covered by clause (a) or (c) above) for 30 days
after written notice thereof has been given to the Borrower
by the Bank; or
(e) any representation, warranty or certification made
by the Borrower in this Agreement or in any certificate,
financial statement or other document delivered pursuant to
this Agreement shall prove to have been incorrect in any
material respect upon the date when made or deemed made; or
(f) (1) the Borrower or any Significant Subsidiary or
Significant Group of Subsidiaries defaults in any payment at
any stated maturity of principal of or interest on any other
obligation 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) beyond any period of
grace provided with respect thereto or (2) the Borrower or
any Significant Subsidiary or Significant Group of
Subsidiaries defaults in any payment other than at any
stated maturity of principal of or interest on any other
obligation 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) beyond any period of
grace provided with respect thereto, or the Borrower or any
Significant Subsidiary or Significant Group of Subsidiaries
fails to perform or observe any other agreement, term or
PAGE
condition contained in any agreement under which any such
obligation is created (or if any other event thereunder or
under any such agreement shall occur and be continuing), and
the effect of such default with respect to a payment other
than at any stated maturity, failure or other event is to
cause, or to permit the holder or holders of such obligation
(or a trustee on behalf of such holder or holders) to cause,
such obligation to become due or to require the purchase
thereof prior to any stated maturity; provided that the
aggregate amount of all obligations as to which any such
payment defaults (whether or not at stated maturity),
failures or other events shall have occurred and be
continuing exceeds $10,000,000 and provided, further, that
it is understood that the obligations referred to herein
exclude those obligations arising in connection with
securities repurchase transactions; or
(g) the Borrower or any Significant Subsidiary or
Significant Group of Subsidiaries shall commence a voluntary
case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under
any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of
it or any substantial part of its property, or shall consent
to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or
other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due, or shall
take any corporate action to authorize any of the foregoing;
or
(h) an involuntary case or other proceeding shall be
commenced against the Borrower or any Significant Subsidiary
or Significant Group of Subsidiaries seeking liquidation,
reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an
order for relief shall be entered against the Borrower or
any Significant Subsidiary or Significant Group of
Subsidiaries under the federal bankruptcy laws as now or
hereafter in effect; or
(i) any member of the ERISA Group shall fail to pay
when due any amount or amounts aggregating in excess of
$1,000,000 which it shall have become liable to pay to the
PBGC or to a Plan under Title IV of ERISA (except where such
liability is contested in good faith by appropriate
PAGE
proceedings as permitted under Section 6.4); or notice of
intent to terminate a Material Plan (other than any multiple
employer plan within the meaning of Section 4063 of ERISA)
shall be filed under Title IV of ERISA by any member of the
ERISA Group, any plan administrator or any combination of
the foregoing; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate, to impose liability (other
than for premiums under Section 4007 of ERISA) in respect
of, or to cause a trustee to be appointed to administer any
such Material Plan; or
(j) judgments or orders for the payment of money in
excess of $10,000,000 in the aggregate shall be rendered
against the Borrower or any Significant Subsidiary or
Significant Group of Subsidiaries and such judgments or
orders shall continue unsatisfied and unstayed for a period
of 60 days; or
(k) any person or group of persons (within the meaning
of Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended (the "1934 Act")), other than the Borrower
or any of its Subsidiaries, becomes the beneficial owner
(within the meaning of Rule 13d-3 under the 0000 Xxx) of 30%
or more of the combined voting power of the Borrower's then
outstanding voting securities; or a tender offer or exchange
offer (other than an offer by the Borrower or a Subsidiary)
pursuant to which 30% or more of the combined voting power
of the Borrower's then outstanding voting securities was
purchased, expires; or during any period of two consecutive
years, individuals who, at the beginning of such period,
constituted the Board of Directors of the Borrower cease for
any reason to constitute at least a majority thereof, unless
the election or the nomination for the election by the
Borrower's stockholders of each new director was approved by
a vote of at least two-thirds of the directors then still in
office who were directors at the beginning of the period;
then, and in every such event, (1) in the case of any of the
Events of Default specified in paragraphs (g) or (h) above, the
Commitment shall thereupon automatically be terminated and the
principal of and accrued interest on the Note shall automatically
become due and payable without presentment, demand, protest or
other notice or formality of any kind, all of which are hereby
expressly waived and (2) in the case of any other Event of
Default specified above, the Bank may, by notice in writing to
the Borrower, terminate the Commitment hereunder, if still in
existence, and it shall thereupon be terminated, and the Bank
may, by notice in writing to the Borrower, declare the Note and
all other sums payable under this Agreement to be, and the same
shall thereupon forthwith become, due and payable without
presentment, demand, protest or other notice or formality of any
kind, all of which are hereby expressly waived.
PAGE
SECTION 8
MISCELLANEOUS
8.1 Notices. Unless otherwise specified herein all
notices, requests, demands or other communications to or from the
parties hereto shall be sent by United States mail, certified,
return receipt requested, telegram, telex or facsimile, and shall
be deemed to have been duly given upon receipt thereof. In the
case of a telex, receipt of such communication shall be deemed to
occur when the sender receives its answer back. In the case of a
facsimile, receipt of such communication shall be deemed to occur
when the sender confirms such receipt by telephone. Any such
notice, request, demand or communication shall be delivered or
addressed as follows:
(a ) if to the Borrower, to it at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Vice
President and Treasurer (with a copy at the same address to
the Senior Vice President and General Counsel);
(b) if to the Bank, communications relating to its
Eurodollar Loans (including without limitation any Sterling
Loans) shall be delivered or addressed to the address or
telex number set forth on the signature pages hereof for its
Eurodollar Lending Office and all other communications shall
be delivered or addressed to the address or telex number set
forth on the signature pages hereof for its Domestic Lending
Office;
or at such other address or telex number as any party hereto may
designate by written notice to the other party hereto.
8.2 Amendments and Waivers; Cumulative Remedies.
(a) None of the terms of this Agreement may be waived,
altered or amended except by an instrument in writing duly
executed by the Borrower and the Bank.
(b) No failure or delay by the Bank in exercising any
right, power or privilege hereunder or under the Note shall
operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or
privilege. The rights and remedies provided herein shall be
cumulative and not exclusive of any rights or remedies
provided by law.
8.3 Successors and Assigns.
(a) The provisions of this Agreement shall be binding
upon and shall inure to the benefit of the Borrower and the
Bank, except that the Borrower may not assign or otherwise
transfer any of its rights and obligations under this
Agreement except as provided in Section 2.15 and Section
6.10 hereof, without the prior written consent of the Bank
which the Bank shall not unreasonably delay or withhold.
PAGE
(b) The Bank may at any time grant to one or more
banks or other institutions (each a "Participant")
participating interests in its Commitment or any or all of
its Loans. In the event of any such grant by the Bank of a
participating interest to a Participant, whether or not upon
notice to the Borrower the Bank shall remain responsible for
the performance of its obligations hereunder, and the
Borrower shall continue to deal solely and directly with the
Bank in connection with the Bank's rights and obligations
under this Agreement. Any agreement pursuant to which the
Bank may grant such a participating interest shall provide
that the Bank shall retain the sole right and responsibility
to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this
Agreement; provided that such participation agreement may
provide that the Bank will not agree to any modification,
amendment or waiver of this Agreement (i) which increases or
decreases the Commitment of the Bank (ii) reduces the
principal of or rate of interest on any Loan or fees
hereunder or (iii) postpones the date fixed for any payment
of principal of or interest on any Loan or any fees
hereunder without the consent of the Participant. The
Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.12 and 4 with respect to its
participating interest.
(c) The Bank may at any time assign all or any portion
of its rights under this Agreement and the Note or Notes to
a Federal Reserve Bank. No such assignment shall release
the Bank from its obligations hereunder.
(d) No Participant or other transferee of the Bank's
rights shall be entitled to receive any greater payment
under Sections 2.12, 4.1 through 4.3 or 8.5 than the Bank
would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the
provisions of Section 4.3(c) or 8.5(c) requiring the Bank to
designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances
giving rise to such greater payment did not exist.
8.4 Expenses; Documentary Taxes; Indemnification.
(a) The Borrower shall pay (i) all out-of-pocket
expenses and internal charges of the Bank (including
reasonable fees and disbursements of counsel) in connection
with any Default hereunder and (ii) if there is an Event of
Default, all out-of-pocket expenses incurred by the Bank
(including reasonable fees and disbursements of counsel) in
connection with such Event of Default and collection and
other enforcement proceedings resulting therefrom. The
PAGE
Borrower shall indemnify the Bank against any transfer
taxes, documentary taxes, assessments or charges made by any
governmental authority by reason of the execution and
delivery of this Agreement or the Note.
(b) The Borrower agrees to indemnify the Bank and hold
the Bank harmless from and against any and all liabilities,
losses, damages, costs and expenses of any kind (including,
without limitation, the reasonable fees and disbursements of
counsel for the Bank in connection with any investigative,
administrative or judicial proceeding, whether or not the
Bank shall be designated a party thereto) which may be
incurred by the Bank relating to or arising out of any
actual or proposed use of proceeds of Loans hereunder or any
merger or acquisition involving the Borrower; provided, that
the Bank shall not have the right to be indemnified
hereunder for its own gross negligence or willful misconduct
as determined by a court of competent jurisdiction.
8.5 Withholding Taxes.
(a) With respect to any Loan as to which the Bank's
Applicable Lending Office is located outside the United
States, all payments by the Borrower to the Bank under this
Agreement are to be made free and clear of any and all
taxes, duties, imposts, fees, withholdings or deductions
(the "Deductions") of any nature now or hereafter imposed by
the United States of America or any political subdivision or
taxing authority thereof or therein. If any Deduction is,
by law, required to be made from any payment hereunder, then
the Borrower shall (i) made such Deduction, (ii) pay the
amount of such Deduction to the relevant taxing authority
and (iii) pay to the Bank such additional amount as will
result in receipt by the Bank of a net amount equal to the
amount the Bank would have received hereunder had no such
Deduction been required, provided that the Borrower shall
not be required to pay any such additional amount (A) in
respect of any tax imposed on the net income of the Bank by
the jurisdiction under the laws of which the Bank is
organized or where its principal place of business or
Applicable Lending Office is located, or any political
subdivision or taxing authority thereof or therein, or (B)
to the extent such Deduction is required as a result of the
Bank's failure to comply with its obligations pursuant to
Section 8.5(b) hereof. In the event such Deduction is so
required to be made from any payment hereunder, the Borrower
shall, as soon as practicable, deliver to the Bank any
receipts issued by the relevant taxing authority evidencing
the amount of such Deduction and its payment.
(b) The Bank agrees to complete and deliver to the
Borrower, prior to the date on which the first payment to
the Bank is due under any Loan made hereunder and (so long
PAGE
as it remains eligible to do so) from time to time
thereafter, (i) with respect to any Loan as to which the
Bank's Applicable Lending Office is located outside the
United States, an Internal Revenue Service Form 1001
certifying that it is entitled to benefits under an income
tax treaty to which the United States is a party that
reduces the rate of withholding tax on payments of interest
to zero or (ii) with respect to any Loan as to which the
Bank's Applicable Lending Office is located in the United
States, an Internal Revenue Service Form 4224 in duplicate
certifying that the income receivable pursuant to this
Agreement is effectively connected with the conduct of a
trade or business in the United States. The Bank further
agrees to complete and deliver to the Borrower from time to
time, so long as it is eligible to do so, any successor or
additional form required by the Internal Revenue Service in
order to secure an exemption from, or reduction in the rate
of, U.S. withholding tax.
(c) The Bank agrees that if the Borrower is required
to pay any additional amounts pursuant to Section 8.5(a)
hereof in respect of any Loan, the Bank will, upon the
request of the Borrower, designate a different Applicable
Lending Office if such designation will reduce the amount of
the Deductions required to be made by the Borrower and will
not otherwise be materially disadvantageous to the Bank.
8.6 Counterparts. This Agreement may be signed in any
number of counterparts with the same effect as if the signatures
thereto and hereto were upon the same instrument.
8.7 Headings; Table of Contents. The section and
subsection headings used herein and the Table of Contents have
been inserted for convenience of reference only and do not
constitute matters to be considered in interpreting this
Agreement.
8.8 Governing Law. This Agreement and the Note shall
be construed in accordance with and governed by the law of the
State of New York.
PAGE
IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of July 3, 1995.
THE INTERPUBLIC GROUP OF
COMPANIES, INC.
By: XXXX X. XXXXXXX
Title: Vice President & Treasurer
LLOYDS BANK Plc
By: XXXXXXXX XXXXXX
Title: Senior Vice President
By: XXXXXXX X. XXXXXX
Title: Assistant Vice Presient
Domestic Lending Office
Lloyds Bank
One Seaport Plaza
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xx. Xxxxxxxx Xxxxxx
Tel #: 000-000-0000
Fax #: 000-000-0000
Fed Wire: ABA #000000000
Acct.: Lloyds Bank Plc
c/o Bankers Trust
Xxx Xxxxxxx Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Acct. No.: 000-000-00
Eurodollar Lending Office
Lloyds Bank Plc
Xxxx Xxxxx
Xxxx Xxxxxx
Xxxxxxx XX0 0XX
Xxxxxxx
Attn.: Xx. Xxx Xxxxxxxx
Tel #: (0000) 000-0000
Fax #: (0000) 000-0000
Fed Wire: 30-15-57
Acct.: Loans Administration Dept.
Acct. No. 00002727
PAGE
EXHIBIT A
NOTE
_____________, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, THE INTERPUBLIC GROUP OF COMPANIES,
INC., a Delaware corporation (the "Borrower"), hereby promises to
pay to the order of LLOYDS BANK Plc (the "Bank"), for the account
of its Applicable Lending Office, the unpaid principal amount of
each Loan made by the Bank to the Borrower pursuant to the Credit
Agreement referred to below on the last day of the Interest
Period relating to such Loan. The Borrower promises to pay
interest on the unpaid principal amount of each such Loan on the
dates and at the rate or rates provided for in the Credit
Agreement.
All such payments of principal and interest shall be
made in lawful money of the United States of America in Federal
or other immediately available funds at the office of the Bank
located at ___________________________________.
All Loans made by the Bank, the respective maturities
thereof and all repayments of the principal thereof shall be
recorded by the Bank and, prior to any transfer hereof, endorsed
by the Bank on the schedule attached hereto, or on a continuation
of such schedule attached to and made a part hereof; provided
that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is the Note referred to in the Credit
Agreement dated as of July 3, 1995 between the Borrower and the
Bank (as the same may be amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used
herein with the same meanings. Reference is made to the Credit
Agreement for provisions for the prepayment hereof and the
acceleration of the maturity hereof.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By: ______________________________
Title:____________________________
PAGE
LOANS AND PAYMENTS OF PRINCIPAL
Amount of
Amount Type Principal Maturity Notation
Date of Loan of Loan Repaid Date Made By
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
PAGE
EXHIBIT B
MONEY MARKET NOTE
_____________, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, THE INTERPUBLIC GROUP OF COMPANIES,
INC., a Delaware corporation (the "Borrower"), hereby promises to
pay to the order of LLOYDS BANK Plc (the "Bank"), for the account
of its Domestic Lending Office, Money Market Rate Loans made by
the Bank to the Borrower pursuant to the Credit Agreement
referred to below upon such terms and conditions as may be agreed
upon pursuant to said Credit Agreement. The Borrower promises to
pay interest on the unpaid principal amount of each such Loan on
the dates and at the rate or rates provided for in the Credit
Agreement.
All such payments of principal and interest shall be
made in lawful money of the United States of America in Federal
or other immediately available funds at the office of the Bank
located at _________________________.
All Money Market Loans made by the Bank, the respective
maturities thereof and all repayments of the principal thereof
shall be recorded by the Bank and, prior to any transfer hereof,
endorsed by the Bank on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of
the Borrower hereunder or under the Credit Agreement.
This note is one of the Money Market Notes referred to
in the Credit Agreement dated as of July 3, 1995, between the
Borrower and the Bank (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is
made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By: ________________________________
Title: _____________________________
PAGE
LOANS AND PAYMENTS OF PRINCIPAL
Amount of
Amount Type Principal Maturity Notation
Date of Loan of Loan Repaid Date Made By
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
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EXHIBIT C
NOTE
_____________, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, [name of Subsidiary Borrower] a
__________ corporation (the "Subsidiary Borrower"), hereby
promises to pay to the order of LLOYDS BANK Plc (the "Bank"), for
the account of its Applicable Lending Office, the unpaid
principal amount of each Subsidiary Loan made by the Bank to the
Subsidiary Borrower pursuant to Section 2.15 of the Credit
Agreement referred to below on the last day of the Interest
Period relating to such Subsidiary Loan. The Subsidiary Borrower
promises to pay interest on the unpaid principal amount of each
such Subsidiary Loan on the dates and at the rate or rates
provided for in the Credit Agreement.
All such payments of principal and interest shall be
made in lawful money of the United States of America in Federal
or other immediately available funds at the office of the Bank
located at ___________________________________.
All Subsidiary Loans made by the Bank, the respective
maturities thereof and all repayments of the principal thereof
shall be recorded by the Bank and, prior to any transfer hereof,
endorsed by the Bank on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of
the Subsidiary Borrower hereunder or under the Credit Agreement.
This note is the Subsidiary Note referred to in Section
2.15 of the Credit Agreement dated as of July 3, 1995 between The
Interpublic Group of Companies, Inc. and the Bank (as the same
may be amended from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for
provisions for the prepayment hereof and the acceleration of the
maturity hereof.
[SUBSIDIARY BORROWER]
By: ________________________________
Title: _______________________________
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GUARANTY
The Interpublic Group of Companies, Inc. (the
"Guarantor") hereby unconditionally guarantees to the Bank the
due and punctual payment of the principal of, and interest on,
the Note upon which this Guaranty is endorsed (the "Note"). The
foregoing is an absolute, continuing and irrevocable guaranty of
payment and not of collectibility or performance. The Guarantor
hereby waives diligence, presentment and demand of payment
(except as provided in the Credit Agreement) and covenants that
this Guaranty will not be discharged except by payment as herein
provided. Until all amounts of principal of, and interest on,
the Note have been paid or otherwise satisfied in full, the
Guarantor will not exercise any rights that it may have acquired
by way of subrogation under this Guaranty, by any payment made
hereunder or otherwise, or accept any payment on account of such
subrogation rights. If any payment (or part thereof) of the
principal of, or interest on, the Note is rescinded or must
otherwise be returned by the Bank upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the
primary obligor under the Note, this Guaranty shall continue to
be effective, or be reinstated, as to said payment (or part
thereof) as if such payment (or part thereof) had not been made.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By: ________________________________
Title: _____________________________
