CREDIT AGREEMENT
BETWEEN
INTERPUBLIC GROUP OF COMPANIES, INC.
AND
NBD BANK
__________________________
US$25,000,000
___________________________
Dated as of December 21, 1995
PAGE
TABLE OF CONTENTS
SECTION PAGE
SECTION 1
INTERPRETATIONS AND DEFINITIONS
1.1 Definitions 1
1.2 Accounting Terms and Determinations 5
SECTION 2
TERMS OF THE LOAN
2.1 Commitment of the Bank 6
2.2 Termination and Reduction of Commitment 6
2.3 Disbursement of Term Loan 6
2.4 Principal Payments 6
2.5 Interest Rates 7
2.6 Payment Methods 7
2.7 No Setoff or Deduction 8
2.8 Payment on Non-Business Day; Payment Computations 8
2.9 Indemnification 8
2.10 Additional Costs 9
SECTION 3
CONDITIONS OF LENDING
3.1 Conditions of Lending 11
SECTION 4
REPRESENTATIONS AND WARRANTIES
4.1 Corporate Existence and Power 12
4.2 Corporate and Governmental Authorization:
Contravention 12
4.3 Binding Effect 12
4.4 Financial Information 12
4.5 Litigation 13
4.6 Compliance with ERISA 13
4.7 Taxes 13
4.8 Subsidiaries 13
PAGE
SECTION 5
COVENANTS
5.1 Information 14
5.2 Maintenance of Property; Insurance 16
5.3 Conduct of Business and Maintenance of Existence 16
5.4 Compliance with Laws 16
5.5 Inspection of Property, Books and Records 17
5.6 Cash Flow to Total Borrowed Funds 17
5.7 Total Borrowed Funds to Consolidated Net Worth 17
5.8 Minimum Consolidated Net Worth 17
5.9 Negative Pledge 18
5.10 Consolidations, Mergers and Sales of Asset 19
5.11 Use of Proceeds 19
SECTION 6
EVENTS OF DEFAULT
6.1 Events of Default 20
SECTION 7
MISCELLANEOUS
7.1 Notices 23
7.2 Amendments and Waivers; Cumulative Remedies 23
7.3 Successors and Assigns 23
7.4 Expenses; Documentary Taxes; Indemnification 24
7.5 Counterparts 25
7.6 Headings; Table of Contents 25
7.7 Governing Law 25
PAGE
CREDIT AGREEMENT
AGREEMENT dated as of December 21, 1995 between THE INTERPUBLIC
GROUP OF COMPANIES, INC., a Delaware corporation (the "Borrower"),
and NBD BANK, a Michigan banking corporation (the "Bank").
SECTION 1
INTERPRETATIONS AND DEFINITIONS
1.1 Definitions. The following terms, as used herein, shall
have the following respective meanings:
"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.
"Business Day" means a day other than a Saturday, Sunday
or other day on which the Bank is not open to the public for
carrying on substantially all of its banking functions.
"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
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 further
understood that such increase or decrease in deferred taxes
relating to such investment shall not exceed $25,000,000).
"Code" means the Internal Revenue Code of 1986, as
amended, and any successor statute thereto.
"Commitment" means the commitment of the Bank to make the
Term Loan pursuant to Section 2.1 in the principal amount of
$25,000,000.
"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which would be
consolidated with those of the Borrower in its consolidated
financial statements as of such date.
"Consolidated Net Worth" means at any date the
consolidated stockholders' equity of the Borrower and its
Consolidated Subsidiaries as such appear on the financial
statements of the Borrower determined in accordance with
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generally accepted accounting principles (plus any amount by
which retained earnings has been reduced by reason of the
recognition of post-retirement and post-employment benefit
costs prior to the period in which such benefits are paid and
without taking into account the effect of cumulative currency
translation adjustments).
"Debt" of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed
money, including reimbursement obligations for letters of
credit, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase
price of property or services, except trade accounts payable
arising in the ordinary course of business, (iv) all
obligations of such Person as lessee under capital leases, (v)
all Debt of others secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person,
and (vi) all Debt of others Guaranteed by such Person, but in
each case specified in (i) through (vi) excludes obligations
arising in connection with securities repurchase transactions.
"Default" means any condition or event which constitutes
an Event of Default or which with the giving of notice or
lapse of time, or both, would become an Event of Default.
"Dollars" and the sign "$" mean lawful money of the
United States of America.
"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.
"Event of Default" has the meaning set forth in Section
6 hereof.
"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
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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 Payment Date" means subject to Section 2.4
hereof, the last day of each March, June, September and
December occurring after the date hereof, commencing with the
first such day occurring after the date of this Agreement,
except that an adjustment will be made if any Interest Payment
Date would otherwise fall on a day that is not a New York
Banking Day and a London Banking Day so that the Interest
Payment Date will be the first following day that is a New
York Banking Day and a London Banking Day, unless that day
falls in the next calender month, in which case the Interest
Payment Date will be the first preceding day that is a New
York Banking Day and a London Banking Day.
"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.
"London Banking Day" means any day in which dealings and
deposits in U.S. dollars are transacted in the London
interbank market.
"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.
"Maturity Date" means the Interest Payment Date occurring
on December 21, 2002.
"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 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.
PAGE
"New York Banking Day" means any day other than a
Saturday, a Sunday or a day on which commercial banks in New
York City are required or authorized to be closed.
"Overdue Rate" means a rate per annum that is equal to
the sum of three percent (3%) per annum plus the per annum
rate in effect under the Term Note.
"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 7.3.
"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 6.1.(e), there shall be a
payment default, failure or other event (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 6.1.(f) and (g) and the last sentence of
Section 5.10, the condition or event described therein shall
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exist with respect to each Consolidated Subsidiary included in
such group or (z) Section 6.1.(i), 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.
"Term Loan" means the borrowing under Section 2.3
evidenced by the Term Note and made pursuant to Section 2.1.
"Term Note" means any promissory note of the Borrower
evidencing the Term Loan, in substantially the form annexed
hereto as Exhibit A, as amended or modified from time to time
and together with any promissory note or notes issued in
exchange or replacement therefor.
"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
TERMS OF THE LOANS
2.1 Commitment of the Bank. The Bank agrees, subject to
the terms and conditions of this Agreement, to make a single
Term Loan to the Borrower, and the Borrower agrees to borrow
such Term Loan from the Bank, on December 21, 1995, in the
principal amount of $25,000,000.
2.2 Termination and Reduction of Commitment. Neither
the Borrower nor the Bank shall have the right to terminate or
reduce the Commitment.
2.3 Disbursement of Term Loan. (a) Subject to the terms
and conditions of this Agreement, the proceeds of the Term
Loan shall be made available to the Borrower by depositing the
proceeds thereof, in immediately available funds, in an
account maintained and designated by the Borrower at the Bank
or by wire transfer or otherwise as requested by the Borrower.
(b) The Term Loan made under this Section 2.3 shall be
evidenced by the Term Note, and the Term Loan shall be due and
payable and bear interest as provided in Sections 2.4 and 2.5.
The Bank is hereby authorized by the Borrower to record on the
schedule attached to the Term Note, or in its books and
records, the amount of each payment of principal thereon, and
the other information provided for on such schedule, which
schedule or books and records, as the case may be, shall
constitute prima facie evidence of the information so
recorded, provided, however, that failure of the Bank to
record, or any error in recording, any such information shall
not relieve the Borrower of its obligation to repay the
outstanding principal amount of the Term Loan, all accrued
interest thereon and other amounts payable with respect
thereto in accordance with the terms of this Agreement.
2.4. Principal Payments.
(a) Unless earlier payment is required under this
Agreement pursuant to Section 6.1, the Borrower shall pay to
the Bank the outstanding principal amount of the Term Loan in
the amount of $25,000,000 on the Maturity Date, when the
entire outstanding principal amount of, and accrued interest
on, the Term Loan shall be due and payable.
(b) The Borrower may prepay all (but not less than all)
of the outstanding principal amount of the Term Loan, on any
Interest Payment Date provided, that the Borrower shall have
paid to the Bank, together with such prepayment of principal,
all accrued interest on the principal amount prepaid to the
PAGE
date of prepayment and the amount, if any, of the prepayment
indemnity determined pursuant to Section 2.9 to be payable to
the Bank. The Borrower shall give the Bank not more than ten,
and not less than five, London Banking Days' notice of any
proposed prepayment specifying the prepayment date and the
person or persons authorized to notify the Bank of acceptance
of the terms of prepayment referred to in the next succeeding
sentence. The Bank shall provide oral notice to a person so
specified by the Borrower on the second London Banking Day
prior to the proposed prepayment date of the amount, if any,
of the prepayment indemnity which shall be paid in connection
with such proposed prepayment by the Borrower or the Bank, as
the case may be, pursuant to Section 2.9. At the time of such
oral notice, such person shall state whether the Borrower
elects to make such proposed prepayment on such terms. If the
Borrower so elects to make such prepayment, the notice of
prepayment given by the Borrower shall be irrevocable and the
entire outstanding principal amount of the Term Loan, together
with such accrued interest and any such additional sum payable
pursuant to Section 2.9, shall become due and payable on the
specified prepayment date. The Bank may, but shall not be
obligated to, provide written confirmation of such election to
the Borrower, but any failure of the Bank to provide such
confirmation shall not affect the obligation of the Borrower
to make such prepayment on the agreed terms.
2.5 Interest Payments. The Borrower shall pay interest
to the Bank on the unpaid principal amount of the Term Loan,
for the period commencing on the date such Term Loan is made
until such Term Loan is paid in full, on each Interest Payment
Date and at maturity (whether at stated maturity, by
acceleration or otherwise), at the per annum rate of six and
forty-five one-hundredths percent (6.45%). Notwithstanding
the foregoing, the Borrower shall pay interest on demand at
the Overdue Rate on the outstanding principal amount of the
Term Loan and any other amount payable by the Borrower
hereunder (other than interest) which is not paid in full when
due (whether at stated maturity, by acceleration or otherwise)
for the period commencing on the due date thereof until the
same is paid in full.
2.6 Payment Method. (a) All payments to be made by the
Borrower hereunder will be made in Dollars and in immediately
available funds to the Bank at its address set forth in
Section 7.1 not later than 3:00 p.m. Detroit time on the date
on which such payment shall become due. Payments received
after 3:00 p.m. Detroit time shall be deemed to be payments
made prior to 3:00 p.m. Detroit time on the next succeeding
Business Day.
(b) At the time of making each such payment, the
PAGE
Borrower shall, subject to the other terms and conditions of
this Agreement, specify to the Bank that obligation of the
Borrower hereunder to which such payment is to be applied. In
the event that the Borrower fails to so specify the relevant
obligation or if an Event of Default shall have occurred and
be continuing, the Bank may apply such payments as it may
determine in its sole discretion to obligations of the
Borrower to the Bank arising under this Agreement.
2.7 No Setoff or Deduction. All payments of principal
and interest on the Term Note and other amounts payable by the
Borrower hereunder shall be made by the Borrower without
setoff or counterclaim, and free and clear of, and without
deduction or withholding for, or on account of, any present or
future taxes, levies, imposts, duties, fees, or assessments
imposed by any governmental authority, or by any department,
agency or other political subdivision or taxing authority.
2.8 Payment on Non-Business Day; Payment Computations.
Except as otherwise provided in this Agreement to the
contrary, whenever any interest on the Term Loan or any other
amount due hereunder becomes due and payable on a day which is
not a Business Day, the maturity thereof shall be extended to
the next succeeding Business Day. Computations of interest
and other amounts due under this Agreement shall be made on
the basis of a year of 360 days for the actual number of days
elapsed, including the first day but excluding the last day of
the relevant period.
2.9 Indemnification.
(a) In the event that the Borrower shall make any
optional prepayment pursuant to Section 2.4 (b), the Borrower
will pay to the Bank, if a positive number, and the Bank will
pay to the Borrower, if a negative number, a prepayment
indemnity equal to the amount determined in accordance with
clause(c) below.
(b) In the event that the principal of, and accrued
interest on, the Term Loan shall become due and payable prior
to scheduled maturity under Section 6, the Borrower will pay
to the Bank a prepayment indemnity equal to the amount, if a
positive number, determined in accordance with clause (c)
below.
(c) The amount payable by the Borrower pursuant to
clauses (a) or (b) above, or by the Bank pursuant to clause
(a) above, shall be the amount (expressed as a positive
number) determined by the Bank in good faith to be necessary
to preserve the economic equivalent of the yield anticipated
to be earned by the Bank in connection with the Term Loan and
PAGE
to compensate the Bank for any other losses and costs
(including loss of bargain and loss of funding) that it may
incur as a result of such prepayment or acceleration of, the
Term Loan. If the Bank determines that it would gain or
benefit from such occurrence, the Bank's loss will be an
amount (expressed as a negative number) equal to the amount of
the gain or benefit as determined by the Bank. Unless such
quotations are not ascertainable, are not deemed by Bank to
reasonably preserve such economic equivalent or the
determination is being made due to an Event of Default
specified in Section 6.1 (g), the amount payable by the
Borrower or the Bank pursuant to this Section 2.9 shall be
determined by the Bank on the basis of quotations obtained by
the Bank in its discretion from one or more dealers or other
counterparties in the interest rate swap market for an
interest rate swap (i) with payment dates coincident with the
Interest Payment Dates hereunder after the date of such
occurrence, (ii) with a notional amount equal to the principal
amount of the Term Loan scheduled to be outstanding after such
date, and (iii) pursuant to which such dealer or other
counterparty is the fixed rate payor and the Bank is the
floating rate payor at the three-month London interbank
offered rate.
(d) The parties agree that the amounts payable under
this Section 2.9 are a reasonable pre-estimate of loss and not
a penalty. Such amounts are payable for the loss of bargain
and payment of such amounts shall not in any way reduce,
affect or impair the obligations of the Borrower under this
Agreement to pay the principal amount of, and interest on, the
Term Loan. The Bank shall provide a certificate by an officer
of the Bank to confirm the amounts payable under this Section
2.9 and such certificate of the Bank shall, in the absence of
manifest error, constitute prima facie evidence of such amount
payable under this Section 2.9.
2.10 Additional Costs. If the Bank shall have
determined that the adoption, 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 with any
request or directive regarding a 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
PAGE
by the Bank to be material, then from time to time, within 15
days after demand by the Bank, the Borrower shall pay to the
Bank such additional amount or amounts as will compensate the
Bank for such reduction. 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 3
CONDITIONS OF LENDING
3.1 Conditions of Lending. The obligation of the Bank to
make the 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:
(a) receipt by the Bank of a duly executed Note;
(b) that on the date the Term Loan is made no Default or
Event of Default shall have occurred and be continuing;
(c) that the representations and warranties contained in
this Agreement shall be true on and as of the date of the Term
Loan;
(d) receipt by the Bank of an opinion of counsel to the
Borrower as to the matters referred to in Sections 4.1,4.2,
4.3, 4.5 and 4.8 hereof, and covering such other matters as
the Bank may reasonably request, dated the date of the Loan,
satisfactory in form and substance to the Bank;
(e) 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 Loan hereunder and such other corporate
documents and other papers as the Bank may reasonably request;
(f) 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
(g) 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.
The Borrower shall be deemed to have made a representation and
warranty to the Bank at the time of the making of the Term Loan to
the effects set forth in clauses (b) and(c) of this Section 3.
PAGE
SECTION 4
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Bank that:
4.1 Corporate Existence and Power. The Borrower is a
corporation duly organized, incorporated, 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.
4.2 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.
4.3 Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower and the Note, when executed and
delivered in accordance with this Agreement, will constitute a
valid and binding obligation of the Borrower.
4.4 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
4.5 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 Note.
4.6 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.
4.7 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.
4.8 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 5
COVENANTS
So long as the Term Loan shall be in effect, the Borrower
agrees that:
5.1 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 5.6 to 5.8, 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 continuing,
PAGE
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 the Term Loan hereunder,
exceed) 25% of the value of the total assets of the Borrower
and its Consolidated Subsidiaries, in each case as reasonably
determined by the Borrower, prompt notice of such fact; and
PAGE
(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).
5.2 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 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.
5.3 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 5.10
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.
PAGE
5.4 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.
5.5 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.
5.6 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.
5.7 Total Borrowed Funds to Consolidated Net Worth. Total
Borrowed Funds will not exceed 85% of Consolidated Net Worth at the
end of any quarter of any fiscal year.
PAGE
5.8 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.
5.9 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;
PAGE
(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 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 Lien(s) 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.
5.10 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.
5.11 Use of Proceeds. The proceeds of the Term Loan 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 the Term Loan
hereunder a statement in conformity with the requirements of
Federal Reserve Form U-l referred to in Regulation U.
PAGE
SECTION 6
EVENTS OF DEFAULT
6.1 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 Note when due or (ii) interest on any Note within four
days after the same has become due; or
(b) the Borrower shall fail to observe or perform any
covenant contained in Section 5.1(d) or Sections 5.6 to 5.8 or
5.10 hereof; or
(c) the Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than
those covered by clause (a) or (b) above) for 30 days after
written notice thereof has been given to the Borrower by the
Bank; or
(d) 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
(e) (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
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
PAGE
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
(f) 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
(g) 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
(h) 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 proceedings as
permitted under Section 5.4); 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
PAGE
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
(i) 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
(j) 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 (f) or (g) above, 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, 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 7
MISCELLANEOUS
7.1 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 Vice
President and General Counsel);
(b) if to the Bank, to it at 000 Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000; Attention: Xxxxxxx X. Xxxxx, National
Division;
or at such other address or telex number as any party hereto may
designate by written notice to the other party hereto.
7.2 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 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.
7.3 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 5.10 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 the Loan. 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 which (i) reduces the
principal of or rate of interest on the Loan or (ii) postpones
the date fixed for any payment of principal of or interest on
the Loan without the consent of the Participant. The Borrower
agrees that each Participant shall be entitled to the benefits
of Section 2 with respect to its participating interest.
(c) No Participant or other transferee of the Bank's
rights shall be entitled to receive any greater payment under
Section 2 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.
7.4 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 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
PAGE
the Bank relating to or arising out of any actual or proposed
use of proceeds of the Term Loan 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.
7.5 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.
7.6 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.
7.7 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 December 21, 1995.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By: XXXX X. XXXXXXX
Vice President & Treasurer
NBD Bank
By: XXXXXXX X. XXXXX
Vice President
