Exhibit 10.1
EXECUTION COPY
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT
DATED AS OF OCTOBER 6, 2003
MANPOWER INC., a Wisconsin corporation (the "Borrower"), the
banks, financial institutions and other institutional lenders (collectively, the
"Initial Lenders") party hereto, CITIBANK, N.A., as administrative agent
(together with any successor thereto appointed pursuant to Article VII of the
Existing Credit Agreement referred to below, the "Agent") for the Lenders (as
defined in the Existing Credit Agreement referred to below), hereby agree as
follows:
PRELIMINARY STATEMENTS
(1) The Borrower is party to a 364-Day Credit Agreement
dated as of November 29, 2001, amended and restated as of October 7, 2002 (as
amended, supplemented or otherwise modified from time to time to (but not
including) the date of this Amendment and Restatement, the "Existing Credit
Agreement") with the banks, financial institutions and other institutional
lenders party thereto and Citibank, N.A., as Agent for the Lenders and such
other lenders. Capitalized terms not otherwise defined in this Amendment and
Restatement shall have the same meanings as specified in the Existing Credit
Agreement.
(2) The parties to this Amendment and Restatement desire
to amend the Existing Credit Agreement as set forth herein and to restate the
Existing Credit Agreement in its entirety to read as set forth in the Existing
Credit Agreement with the following amendments.
(3) The Borrower has requested that the Lenders agree to
extend credit to it from time to time in an aggregate principal amount of up to
$200,000,000 for general corporate purposes of the Borrower and its Subsidiaries
not otherwise prohibited under the terms of this Agreement. The Lenders have
indicated their willingness to agree to extend credit to the Borrower from time
to time in such amount on the terms and conditions of this Amendment and
Restatement.
SECTION 1. Amendments to the Existing Credit Agreement. The
Existing Credit Agreement is, effective as of the date of this Amendment and
Restatement and subject to the satisfaction of the conditions precedent set
forth in Section 2, hereby amended as follows:
(a) Section 1.01 is amended by deleting the definition of
"Termination Date" set forth therein and replacing it with the following new
definition thereof:
"Termination Date" means the earlier of (a) October 4, 2004,
subject to the extension thereof pursuant to Section 2.19 and (b) the
date of termination in whole of the Commitments pursuant to Section
2.05 or 6.01; provided, however, that the Termination Date of any
Lender that is a Non-Consenting Lender to any requested extension
pursuant to Section 2.19 shall be the Termination Date in effect
immediately prior to the applicable Extension Date for all purposes of
this Agreement.
(b) Section 4.01(e) is amended (i) by deleting the date
"December 31, 2001" and substituting therefor the date "December 31, 2002" in
each place such date appears, (ii) by deleting the name "Xxxxxx Xxxxxxxx, LLP"
and substituting therefor the name "PricewaterhouseCoopers LLP" and
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(iii) by deleting the date "June 30, 2002" and substituting therefor the date
"June 30, 2003" in each place such date appears.
(c) Section 8.02 is amended in full to read as follows:
SECTION 8.02. Notices, Etc. (a) All notices
and other communications provided for hereunder shall be
either (x) in writing (including telecopier, telegraphic or
telex communication) and mailed, telecopied, telegraphed,
telexed or delivered or (y) as and to the extent set forth in
Section 8.02(b) and in the proviso to this Section 8.02(a), if
to the Borrower, at its address at 0000 Xxxxx Xxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Vice President -
Finance; if to any Initial Lender, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to
any other Lender, at its Domestic Lending Office specified in
the Assumption Agreement or the Assignment and Acceptance
pursuant to which it became a Lender; and if to the Agent, at
its address at Xxx Xxxxx Xxx, Xxx Xxxxxx, Xxxxxxxx 00000,
Attention: Bank Loan Syndications Department; or, as to the
Borrower or the Agent, at such other address as shall be
designated by such party in a written notice to the other
parties and, as to each other party, at such other address as
shall be designated by such party in a written notice to the
Borrower and the Agent, provided that materials required to be
delivered pursuant to Section 5.01(h)(i), (ii) or (iv) shall
be delivered to the Agent as specified in Section 8.02(b) or
as otherwise specified to the Borrower by the Agent. All such
notices and communications shall, when mailed, telecopied,
telegraphed or e-mailed, be effective when deposited in the
mails, telecopied, delivered to the telegraph company or
confirmed by e-mail, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VII
shall not be effective until received by the Agent. Delivery
by telecopier of an executed counterpart of any amendment or
waiver of any provision of this Agreement or the Notes or of
any Exhibit hereto to be executed and delivered hereunder
shall be effective as delivery of a manually executed
counterpart thereof.
(b) So long as Citibank or any of its
Affiliates is the Agent, materials required to be delivered
pursuant to Section 5.01(h)(i), (ii) and (iv) shall be
delivered to the Agent in an electronic medium in a format
acceptable to the Agent and the Lenders by e-mail at
xxxxxxxxxxxxxxx@xxxxxxxxx.xxx. The Borrower agrees that the
Agent may make such materials, as well as any other written
information, documents, instruments and other material
relating to the Borrower, any of its Subsidiaries or any other
materials or matters relating to this Agreement, the Notes or
any of the transactions contemplated hereby (collectively, the
"Communications") available to the Lenders by posting such
notices on Intralinks, "e-Disclosure", the Agent's internet
delivery system that is part of Fixed Income Direct, Global
Fixed Income's primary web portal, or a substantially similar
electronic system (the "Platform"). The Borrower acknowledges
that (i) the distribution of material through an electronic
medium is not necessarily secure and that there are
confidentiality and other risks associated with such
distribution, (ii) the Platform is provided "as is" and "as
available" and (iii) neither the Agent nor any of its
Affiliates warrants the accuracy, adequacy or completeness of
the Communications or the Platform and each expressly
disclaims liability for errors or omissions in the
Communications or the Platform. No warranty of any kind,
express, implied or statutory, including, without limitation,
any warranty of merchantability, fitness for a particular
purpose, non-infringement of third party rights or freedom
from viruses or other code defects, is made by the Agent or
any of its Affiliates in connection with the Platform.
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(c) Each Lender agrees that notice to
it (as provided in the next sentence) (a "Notice") specifying
that any Communications have been posted to the Platform shall
constitute effective delivery of such information, documents
or other materials to such Lender for purposes of this
Agreement; provided that if requested by any Lender the Agent
shall deliver a copy of the Communications to such Lender by
email or telecopier. Each Lender agrees (i) to notify the
Agent in writing of such Lender's e-mail address to which a
Notice may be sent by electronic transmission (including by
electronic communication) on or before the date such Lender
becomes a party to this Agreement (and from time to time
thereafter to ensure that the Agent has on record an effective
e-mail address for such Lender) and (ii) that any Notice may
be sent to such e-mail address.
(d) Section 8.08 is amended by adding to the end thereof
a new sentence to read as follows:
Notwithstanding anything herein to the contrary, the Borrower,
the Agent and each Lender (and each employee, representative or other
agent of each of the foregoing parties) may disclose to any and all
Persons, without limitation of any kind, the U.S. tax treatment and tax
structure of the transactions contemplated hereby and all materials of
any kind (including opinions or other tax analyses) that are provided
to any of the foregoing parties relating to such U.S. tax treatment and
tax structure.
(e) Schedule I is deleted in its entirety and replaced
with Schedule I to this Amendment and Restatement.
SECTION 2. Conditions of Effectiveness of this Amendment and
Restatement. This Amendment and Restatement shall become effective as of the
date first above written (the "Restatement Effective Date") when and only if:
(a) The Agent shall have received counterparts of this
Amendment and Restatement executed by the Borrower and all of the
Initial Lenders or, as to any of the Initial Lenders, advice
satisfactory to the Agent that such Initial Lender has executed this
Amendment and Restatement.
(b) On the Restatement Effective Date, the following
statements shall be true and the Agent shall have received for the
account of each Lender a certificate signed by a duly authorized
officer of the Borrower, dated the Restatement Effective Date, stating
that:
(i) The representations and warranties contained
in Section 4.01 of the Existing Credit Agreement are correct
on and as of the Restatement Effective Date, before and after
giving effect to the Restatement Effective Date, as though
made on and as of such date, and
(ii) No event has occurred and is continuing, or
will occur as a result of the occurrence of the Restatement
Effective Date, that constitutes a Default.
(c) The Agent shall have received on or before the
Restatement Effective Date the following, each dated such date and
(unless otherwise specified below) in form and substance satisfactory
to the Agent and in sufficient copies for each Initial Lender:
(i) The Revolving Credit Notes to the order of
the Lenders to the extent requested by any Lender pursuant to
Section 2.16 of the Existing Credit Agreement.
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(ii) Certified copies of the resolutions of the
Board of Directors of the Borrower approving this Amendment
and Restatement and the Notes, and of all documents evidencing
other necessary corporate action and governmental approvals,
if any, with respect to this Amendment and Restatement and the
Notes.
(iii) A certificate of the Secretary or an
Assistant Secretary of the Borrower certifying the names and
true signatures of the officers of the Borrower authorized to
sign this Amendment and Restatement and the Notes and the
other documents to be delivered hereunder.
(iv) A favorable opinion of Xxxxxxx & Xxxx, S.C.,
counsel for the Borrower, in substantially the form of Exhibit
E to the Existing Credit Agreement but with such modifications
as are required to address the Existing Credit Agreement, as
amended by this Amendment and Restatement, in form and
substance reasonably satisfactory to the Initial Lenders.
(iv) A favorable opinion of Shearman & Sterling
LLP, counsel for the Agent, in form and substance reasonably
satisfactory to the Agent.
SECTION 3. Reference to and Effect on the Existing Credit
Agreement and the Notes. (a) On and after the effectiveness of this Amendment
and Restatement, each reference in the Existing Credit Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
Existing Credit Agreement, and each reference in the Notes to "the Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Existing Credit Agreement, shall mean and be a reference to the Existing Credit
Agreement, as amended by this Amendment and Restatement.
(b) The Existing Credit Agreement and the Notes, as
specifically amended by this Amendment and Restatement, are and shall continue
to be in full force and effect and are hereby in all respects ratified and
confirmed.
(c) Without limiting any of the other provisions of the
Existing Credit Agreement, as amended by this Amendment and Restatement, any
references in the Existing Credit Agreement to the phrases "on the date hereof",
"on the date of this Agreement" or words of similar import shall mean and be a
reference to the date of the Existing Credit Agreement (which is November 29,
2001).
SECTION 4. Costs and Expenses. The Borrower agrees to pay on
demand all reasonable out-of-pocket costs and expenses of the Agent in
connection with the preparation, execution, delivery and administration,
modification and amendment of this Amendment and Restatement, the Notes and the
other documents to be delivered hereunder (including, without limitation, the
reasonable and documented fees and expenses of counsel for the Agent with
respect hereto and thereto) in accordance with the terms of Section 8.04 of the
Existing Credit Agreement.
SECTION 5. Execution in Counterparts. This Amendment and
Restatement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page
to this Amendment and Restatement by telecopier shall be effective as delivery
of a manually executed counterpart of this Amendment and Restatement.
SECTION 6. Governing Law. This Amendment and Restatement shall
be governed by, and construed in accordance with, the laws of the State of New
York.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Restatement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
MANPOWER INC.
By /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Title: Vice President, Finance and
Treasurer
CITIBANK, N.A.,
as Agent
By /s/ Xxxxxx Xxxxx
-------------------------------
Title: Vice President
Administrative Agent
CITIBANK, N.A.
By /s/ Xxxxxx Xxxxx
-------------------------------
Title: Vice President
Co-Syndication Agents
BNP PARIBAS
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
By /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Central Region Manager
WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxx Xxxxx
-------------------------------
Title: Managing Director
Managing Agents
THE ROYAL BANK OF SCOTLAND PLC
By /s/ Xxxxxx Xxxxx
-------------------------------
Title: Senior Vice President
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BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By /s/ Xxxxxxxxxx Xxxxxxxxx
-------------------------------
Title: Xxxxxxxxxx Xxxxxxxxx
Deputy General Manager
BANK ONE, NA
By /s/ Xxxxx X. Xxxxxx
-------------------------------
Title: Xxxxx X. Xxxxxx
Managing Director
M&I XXXXXXXX AND ILSLEY BANK
By /s/ Xxx X. Xxxxxxx
-------------------------------
Title: Xxx X. Xxxxxxx, Vice President
By /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------
Title: Xxxxxx X. Xxxxxxxxxxx, Vice President
SOCIETE GENERALE NEW YORK
BRANCH
By /s/ Xxxx-Xxxxx Xxxxxxxxx
-------------------------------
Xxxx-Xxxxx Xxxxxxxxx
Title: Vice President
Lenders
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Xxx X. Xxxxx
-------------------------------
Title: Xxx X. Xxxxx
First Vice President
U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxxxxxx X. Xxxxxx
-------------------------------
Title: Xxxxxxxx X Xxxxxx
Vice President & Senior Lender
UNICREDITO ITALIANO S.p.A
By /s/ Xxxxxx Xxxxxx Papa /s/ Xxxxxxx Xxxxxxx
----------------------------------------------
Title: Xxxxxx Xxxxxx Papa Xxxxxxx Xxxxxxx
SVP & General Manager Vice President
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BANCA NAZIONALE DEL LAVORO S.p.A
By /s/ Francesco Di Mario
-------------------------------
Title: Francesco Di Mario
Vice President
By /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------
Title: Xxxxxxxx Xxxxxxxxx
First Vice President
SCHEDULE I TO THE
AMENDMENT AND RESTATEMENT
SCHEDULE I
APPLICABLE LENDING OFFICES
Name of Initial Lender Commitment Domestic Lending Office Eurodollar Lending Office
---------------------- ---------- ----------------------- -------------------------
Banca Nazionale del Lavoro S.p.A. $10,000,000 Banca Nazionale Del Lavoro S.p.A. Banca Nazionale Del Lavoro
New York Branch S.p.A. New York Branch
00 Xxxx 00xx Xxxxxx 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx, VP Attn: Xxxx Xxxxxx, VP
T: (000) 000-0000 T: (000) 000-0000
F: (000) 000-0000 F: (000) 000-0000
---------------------------------------------------------------------------------------------------------------------------
Bank of Tokyo-Mitsubishi, LTD., $15,000,000 Harborside Financial Center Harborside Financial Center
Chicago Branch 500 Plaza III 000 Xxxxx XXX
Xxxxxx Xxxx, XX 00000 Xxxxxx Xxxx, XX 00000
Attn: Xxxxx Xx Attn: Xxxxx Xx
T: (000) 000-0000 T: (000) 000-0000
F: (000) 000-0000 F: (000) 000-0000
---------------------------------------------------------------------------------------------------------------------------
Bank One, NA $15,000,000 1 Bank Xxx Xxxxx 0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx Attn: Xxxxx Xxxxxx
T: (000) 000-0000 T: (000) 000-0000
F: (000) 000-0000 F: (000) 000-0000
---------------------------------------------------------------------------------------------------------------------------
BNP Paribas $25,000,000 000 X. XxXxxxx, Xxxxx 000 000 X. XxXxxxx, Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Attn:
T: (000) 000-0000 T: (000) 000-0000
F: (000) 000-0000 F: (000) 000-0000
---------------------------------------------------------------------------------------------------------------------------
Citibank, N.A. $30,000,000 Two Penns Way Xxx Xxxxx Xxx
Xxx Xxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx Attn: Xxxxx Xxxxxx
T: (000) 000-0000 T: (000) 000-0000
F: (000) 000-0000 F: (000) 000-0000
---------------------------------------------------------------------------------------------------------------------------
Credit Lyonnais New York Branch $10,000,000 000 X. Xxxxxx Xxxxxx, 000 X. Xxxxxx Xxxxxx,
Xxxxx 0000 Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxx Attn: Xxx Xxxxxxx
T: (000) 000-0000 T: (000) 000-0000
F: (000) 000-0000 F: (000) 000-0000
---------------------------------------------------------------------------------------------------------------------------
U.S. Bank National Association $10,000,000 000 X. Xxxxxxxxx Xxxxxx 000 X. Xxxxxxxxx Xxxxxx
MK-FC-GLCB MK-FC-GLCB
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx Attn: Xxxx Xxxxxxxx
T: (000) 000-0000 T: (000) 000-0000
F: (000) 000-0000 F: (000) 000-0000
---------------------------------------------------------------------------------------------------------------------------
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M&I Xxxxxxxx and Xxxxxx Bank $15,000,000 000 Xxxxx Xxxxx Xxxxxx 770 North Water Street
NW18 NW18
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: Xxx X. Xxxxxxx or Xxxxxx Attn: Xxx X. Xxxxxxx or Xxxxxx
Xxxxxxxxxxx Xxxxxxxxxxx
T: (000) 000-0000/7944 T: (000) 000-0000/7944
F: (000) 000-0000 F: (000) 000-0000
---------------------------------------------------------------------------------------------------------------------------
The Royal Bank of Scotland plc $20,000,000 000 Xxxx Xxxxxx, 00xx floor 000 Xxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX, 00000 Xxx Xxxx, XX, 00000
Attn: Xxxxxx Xxxx Attn: Xxxxxx Xxxx
T: 000 000 0000 T: 000 000 0000
F: 000 000 0000 F: 000 000 0000
---------------------------------------------------------------------------------------------------------------------------
Socitete Generale New York Branch $15,000,000 1221 Avenue of the Americas 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx XX 00000 Xxx Xxxx XX 00000
---------------------------------------------------------------------------------------------------------------------------
UniCredito Italiano S.p.A. $10,000,000 UniCredito Italiano UniCredito Italiano
New York Branch New York Branch
000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx Attn: Xxxxxxx Xxxxxxx
T: (000) 000-0000 T: (000) 000-0000
F: (000) 000-0000 F: (000) 000-0000
---------------------------------------------------------------------------------------------------------------------------
Wachovia Bank, National $25,000,000 Wachovia Securities Wachovia Securities
Association 000 Xxxxx Xxxxxxx Xxxxxx 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000 Xxxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxxx Attn: Xxxxx X. Xxxxxxxx
T: (000) 000-0000 T: (000) 000-0000
F: (000) 000-0000 F: (000) 000-0000
---------------------------------------------------------------------------------------------------------------------------
TOTAL OF COMMITMENTS $200,000,000
