Exhibit 10(i)(a)(ii)
EXECUTION COPY
AMENDMENT NO. 2 TO THE
AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
Dated as of May 15, 2003
AMENDMENT NO. 2 TO THE AMENDED AND RESTATED FIVE YEAR CREDIT
AGREEMENT (this "AMENDMENT") among The Interpublic Group of Companies, Inc., a
Delaware corporation (the "COMPANY"), Xxxxxxxx Xxxxx Lintas K.K., the banks,
financial institutions and other institutional lenders parties to the Credit
Agreement referred to below (collectively, the "LENDERS") and Citibank, N.A., as
agent (the "AGENT") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Company, the Lenders and the Agent have entered into a
Five-Year Credit Agreement dated as of June 27, 2000 and amended and restated as
of December 31, 2002 (as amended, supplemented or otherwise modified through the
date hereof, the "CREDIT AGREEMENT"). Capitalized terms not otherwise defined in
this Amendment have the same meanings as specified in the Credit Agreement.
(2) The Company, the Required Lenders and the Agent have agreed
to further amend the Credit Agreement as hereinafter set forth.
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement
is, effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2, hereby amended as follows:
(a) Section 1.01 is amended by deleting the definitions of
"Proceeds Target", "Super Proceeds Target" and "Zero-Coupon Notes Target".
(b) Section 1.01 is amended by adding in appropriate
alphabetical order the following new definitions:
"GUARANTEED OBLIGATIONS" has the meaning specified in Section
7.01.
"LOAN DOCUMENT" means this Agreement, the Notes and the Subsidiary
Guaranty.
"MATERIAL SUBSIDIARY" means each Consolidated Subsidiary of the
Company organized in the United States or any political subdivision
thereof that had, as of the end of the most recently ended fiscal year,
aggregate revenues for such fiscal year equal to at least $25,000,000.
"SUBSIDIARY GUARANTOR" means each Material Subsidiary that is a
party to the Subsidiary Guaranty.
"SUBSIDIARY GUARANTY" has the meaning specified in Section
5.01(i).
(c) The definitions of "Applicable Margin", "Applicable
Percentage" and "Applicable Utilization Fee" are deleted and replaced with the
following, respectively:
"APPLICABLE MARGIN" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date
as set forth below:
---------------------------- ---------------------------- --------------------------------
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Xxxxx'x Base Rate Advances Eurocurrency Rate Advances
---------------------------- ---------------------------- --------------------------------
---------------------------- ---------------------------- --------------------------------
XXXXX 0
BBB+ or Baa1 or above 0.000% 0.600%
---------------------------- ---------------------------- --------------------------------
LEVEL 2
BBB or Baa2 0.000% 0.800%
---------------------------- ---------------------------- --------------------------------
XXXXX 0
XXX- xxx Xxx0 0.000% 1.000%
---------------------------- ---------------------------- --------------------------------
XXXXX 0
XXX- xx Xxx0 0.000% 1.450%
---------------------------- ---------------------------- --------------------------------
XXXXX 0
BB+ and Ba1 0.075% 1.575%
---------------------------- ---------------------------- --------------------------------
XXXXX 0
Xxxxx xxxx Xxxxx 0 0.200% 1.700%
---------------------------- ---------------------------- --------------------------------
"APPLICABLE PERCENTAGE" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on such
date as set forth below:
-------------------------------- -----------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Percentage
-------------------------------- -----------------------------
LEVEL 1
BBB+ or Baa1 or above 0.150%
-------------------------------- -----------------------------
LEVEL 2
BBB or Baa2 0.200%
-------------------------------- -----------------------------
XXXXX 0
XXX- xxx Xxx0 0.250%
-------------------------------- -----------------------------
XXXXX 0
XXX- xx Xxx0 0.300%
-------------------------------- -----------------------------
XXXXX 0
BB+ and Ba1 0.425%
-------------------------------- -----------------------------
XXXXX 0
Xxxxx xxxx Xxxxx 0 0.550%
-------------------------------- -----------------------------
"APPLICABLE UTILIZATION FEE" means, as of any date that the
aggregate Advances exceed 33% of the aggregate Commitments, a percentage
per annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
-------------------------------- -----------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Utilization Fee
-------------------------------- -----------------------------
LEVEL 1
BBB+ or Baa1 or above 0.125%
-------------------------------- -----------------------------
LEVEL 2
BBB or Baa2 0.250%
-------------------------------- -----------------------------
XXXXX 0
XXX- xxx Xxx0 0.250%
-------------------------------- -----------------------------
XXXXX 0
XXX- xx Xxx0 0.250%
-------------------------------- -----------------------------
XXXXX 0
BB+ and Ba1 0.500%
-------------------------------- -----------------------------
XXXXX 0
Xxxxx xxxx Xxxxx 0 0.500%
-------------------------------- -----------------------------
2
(d) The definition of "Business Day" in Section 1.01 is amended
by deleting the phrase "the euro, in Frankfurt German" with the phrase "Euros,
on which the Trans-European Automated Real-Time Gross Settlement Express
Transfer (TARGET) System is open).
(e) The definition of "Debt for Borrowed Money" in Section 1.01
is amended by adding to the end thereof the phrase "or the Subsidiary Guaranty".
(f) The definition of EBITDA in Section 1.01 is amended in full
to read as follows:
"EBITDA" means, for any period, net income (or net loss) PLUS the
sum of (a) Interest Expense, (b) income tax expense, (c) depreciation
expense, (d) amortization expense, (e) non-cash, non-recurring charges in
an amount not to exceed $161,400,000 taken (i) with respect to the
impairment of the assets of Brands Hatch Leisure Limited, Octagon
Worldwide Limited and Octagon Worldwide Inc. and their respective
Subsidiaries, in the fiscal year ended December 31, 2002 (which shall be
allocated to each of the fiscal quarters of 2002 as set forth in a
schedule previously delivered by the Company to the Lenders) and (ii)
with respect to all such other charges, in the fiscal year ended December
31, 2002 (which shall be allocated to each of the fiscal quarters of 2002
as set forth in a schedule previously delivered by the Company to the
Lenders), (f) non-recurring restructuring charges in an amount not to
exceed $200,000,000 (up to $175,000,000 of which may be cash charges)
recorded in the financial statements of the Company and its Consolidated
Subsidiaries for the fiscal quarter ended March 31, 2003, the fiscal
quarter ending June 30, 2003 and the fiscal quarter ending September 30,
2003, (g) non-cash, non-recurring charges in an amount not to exceed
$70,000,000 taken with respect to the impairment of the remaining book
value of Brands Hatch Leisure Limited, Octagon Worldwide Limited and
Octagon Worldwide Inc. and their respective Subsidiaries and (h) all
impairment charges taken with respect to capital expenditures made on or
after January 1, 2003 on behalf of Brands Hatch Leisure Limited, Octagon
Worldwide Limited and Octagon Worldwide Inc. and their respective
Subsidiaries, in each case determined in accordance with GAAP for such
period minus gain realized by the Company upon the sale of NFO Worldwide,
Inc.
(g) The definition of Material Adverse Effect in Section 1.01
is amended in full to read as follows:
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a)
the business, financial condition or results of operations of the Company
and its Consolidated Subsidiaries taken as a whole, (b) the rights and
remedies of the Agent or any Lender under this Agreement or any other
Loan Document or (c) the ability of the Company or any Subsidiary
Guarantor to perform its obligations under this Agreement or any other
Loan Document.
(h) Section 2.14 is amended by (i) deleting from subsection (a)
the phrase "present or future withholding taxes, including levies" and
substituting therefor the phrase "present or future taxes, levies", (ii) by
deleting from subsection (b) the phrase ", but excluding all other United States
federal taxes other than withholding taxes" and (iii) by deleting subsection (f)
in its entirety and substituting therefor the phrase "[Intentionally omitted.]".
(i) Section 2.17 is amended by adding to the end thereof the
following proviso:
; PROVIDED, however, that the proceeds of the Advances shall not
be used to prepay any amounts outstanding under the Company's five Note
Purchase Agreements with The Prudential Insurance Company of America
outstanding on the date hereof or any other long-term Debt of the
Company.
(j) Section 3.03(a) is amended in full to read as follows:
(a) the representations and warranties contained in Section
4.01 and in Section 5 of the Subsidiary Guaranty and, in the case of any
Borrowing made to a Designated Subsidiary, in the Designation Agreement
for such Designated Subsidiary, are correct on and as of such date,
before and after
3
giving effect to such Borrowing or such Extension Date (as the case may
be) and to the application by the applicable Borrower of the proceeds
therefrom, as though made on and as of such date, and
(k) Section 3.03(b) is amended by deleting the phrase "from the
application of the proceeds therefrom " and substituting therefor "from the
application by the applicable Borrower of the proceeds therefrom".
(l) Section 4.01(e) is amended in full to read as follows:
(e) The Consolidated balance sheet of the Company and its
Consolidated Subsidiaries as at December 31, 2002, and the related
Consolidated statement of operations and cash flows of the Company and
its Consolidated Subsidiaries for the fiscal year then ended, accompanied
by an opinion of PricewaterhouseCoopers LLP, independent public
accountants, copies of which have been furnished to each Lender, fairly
present in all material respects the Consolidated financial condition of
the Company and its Consolidated Subsidiaries as at such date and the
Consolidated results of the operations and cash flows of the Company and
its Consolidated Subsidiaries for the period ended on such date, all in
accordance with generally accepted accounting principles consistently
applied. Since the Consolidated balance sheet of the Company and its
Consolidated Subsidiaries as at December 31, 2002, and except (x) as
disclosed in the Company's reports filed with the SEC since such date and
prior to the Effective Date and (y) for the impairment of the assets and
other losses on sale of the Company's Subsidiaries Brands Hatch Leisure
Limited, Octagon Worldwide Limited and Octagon Worldwide Inc. and their
respective Subsidiaries, there has been no Material Adverse Change.
(m) Section 5.01(h)(i) and (ii) are each amended by deleting
therefrom the phrase "chief financial officer or chief accounting officer" and
substituting therefor the phrase "chief financial officer, chief accounting
officer or treasurer".
(n) Section 5.01 is amended by adding two new covenants to read
as follows:
(i) SUBSIDIARY GUARANTY. Deliver to the Agent not later than
August 29, 2003, in sufficient copies for each Lender:
(i) Certified copies of the resolutions of the Board of
Directors of each Subsidiary Guarantor approving the Subsidiary
Guaranty, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect
to the Subsidiary Guaranty.
(ii) A certificate of the Secretary or an Assistant
Secretary of each Subsidiary Guarantor certifying the names and
true signatures of the officers of such Subsidiary Guarantor
authorized to sign the Subsidiary Guaranty and the other documents
to be delivered by it hereunder.
(iii) A guaranty in substantially the form of Exhibit F
hereto (as amended, supplemented or otherwise modified from time
to time, the "SUBSIDIARY GUARANTY"), duly executed by each
Subsidiary Guarantor.
(iv) Favorable opinions of outside and in-house counsel
for each of the Subsidiary Guarantors, substantially in the forms
of Exhibits G-1 and G-2 hereto, respectively.
(j) NEW MATERIAL SUBSIDIARIES. Promptly and in any event within
30 days following the request of the Required Lenders made after the delivery of
audited annual financial statements pursuant to Section 5.01(h) that indicate
that a Subsidiary of the Company that is not at such time a Subsidiary Guarantor
is a Material Subsidiary, cause such Material Subsidiary to execute and deliver
an Accession Agreement (as defined in the Subsidiary Guaranty), together with
the documents set forth in clauses 5.01(i)(i), (ii) and (iv).
4
(o) Section 5.02(a) is amended by (i) deleting clause (x) and
relettering clauses (xi) and (xii) as clauses "(x)" and "(xi)", respectively,
(ii) adding a new clause (xii) to read as follows:
(xii) any Liens on assets of Subsidiaries organized
outside of the United States in favor of lenders under short-term
working capital lines of credit entered into in the ordinary
course of business;
and (iii) by adding to the end thereof new clauses (xiv) and (xv) to read as
follows:
(xiv) any Lien arising out of the L/C Cash Deposit Account
(as defined in the 364-Day Credit Agreement dated as of May 15,
2003 among the Company, the lenders parties thereto and Citibank,
as agent); and
(xv) 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 5% of the
Consolidated net worth of the Company and its Consolidated
Subsidiaries.
(p) Section 5.02(e) is amended by restating clause (iii) in
full to read "(iii) amend any such agreement or instrument to shorten the
maturity or amortization thereof to a date prior to July 31, 2005".
(q) Section 5.02(f) is amended by restating clause (ii) in full
to read "(ii) the cash consideration of all such purchases and acquisitions
shall not exceed $100,000,000 in the aggregate for any calendar year".
(r) Section 5.02(g) is amended by restating clauses (iv) and
(iv) in full to read as follows:
(iv) make Restricted Payments in an aggregate amount of not more
than $25,000,000 in any calendar year and (v) from and after the date
EBITDA for the four fiscal quarters most recently ended is at least (A)
$1,000,000,000, make Restricted Payments in an aggregate amount of not
more than $100,000,000 in any calendar year, (B) $1,200,000,000, make
Restricted Payments in an aggregate amount of not more than $150,000,000
in any calendar year or (C) $1,300,000,000, make any Restricted Payments
without limitation.
(s) Section 5.02(i) is amended by restating the proviso in full
to read "PROVIDED, that the foregoing limitations shall not be effective as to
any such Subsidiary that is a party to the Subsidiary Guaranty."
(t) Section 5.03 is amended in full to read as follows:
SECTION 5.03. FINANCIAL COVENANTS. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder,
the Company will:
(a) INTEREST COVERAGE RATIO. Maintain, as of the end of
each fiscal quarter, a ratio of (i) Consolidated EBITDA of the
Company and its Consolidated Subsidiaries for the four fiscal
quarters then ended to (ii) Interest Expense during such period by
the Company and its Consolidated Subsidiaries, of not less than
(x) 3.5 to 1 for each period ended on or prior to June 30, 2003
and (y) 3.75 to 1 for each period ended on or after September 30,
2003.
(b) DEBT TO EBITDA RATIO. Maintain, as of the end of
each fiscal quarter referenced below, a ratio of (i) Debt for
Borrowed Money as of the end of such fiscal quarter to (ii)
Consolidated EBITDA of the Company and its Consolidated
Subsidiaries for the four quarters then ended, of not greater than
the ratio set forth opposite such fiscal quarter below:
-------------------------------------------------------- --------------------------
FISCAL QUARTER ENDING RATIO
-------------------------------------------------------- --------------------------
5
March 31, 2003 4.00 to 1
-------------------------------------------------------- --------------------------
June 30, 2003 4.50 to 1
-------------------------------------------------------- --------------------------
September 30, 2003 3.75 to 1
-------------------------------------------------------- --------------------------
December 31, 2003 3.50 to 1
-------------------------------------------------------- --------------------------
March 31, 2004 3.50 to 1
-------------------------------------------------------- --------------------------
June 30, 2004 and thereafter 3.25 to 1
-------------------------------------------------------- --------------------------
; PROVIDED that, for purposes of determining Debt for Borrowed
Money for the fiscal quarter ended March 31, 2003, Debt evidenced
by the Company's Zero-Coupon Convertible Senior Notes due 2021
shall be excluded.
(c) MINIMUM EBITDA. Maintain, as of the end of each
fiscal quarter referenced below, Consolidated EBITDA of the
Company and its Consolidated Subsidiaries for the four quarters
then ended of not less than the amount set forth opposite such
fiscal quarter below:
-------------------------------------------------------- --------------------------
FISCAL QUARTER ENDING AMOUNT
-------------------------------------------------------- --------------------------
March 31, 2003 $700,000,000
-------------------------------------------------------- --------------------------
June 30, 2003 $625,000,000
-------------------------------------------------------- --------------------------
September 30, 2003 $675,000,000
-------------------------------------------------------- --------------------------
December 31, 2003 and thereafter $750,000,000
-------------------------------------------------------- --------------------------
(u) Section 6.01(b) is amended by deleting the phrase "the
Company or any Designated Subsidiary" and substituting therefor the phrase "the
Company, any Designated Subsidiary or any Subsidiary Guarantor".
(v) Section 6.01(c)(iii) is amended in full to read as follows:
(iii) the Company, any other Borrower or any Subsidiary Guarantor
shall fail to perform or observe any other term, covenant or agreement
contained in this Agreement or any other Loan Document on its part to be
performed or observed if such failure shall remain unremedied for 30 days
after written notice thereof shall have been given to the Company by the
Agent or any Lender;
(w) Section 6.01(d) is amended by deleting therefrom the second
proviso and substituting therefor the following:
PROVIDED, FURTHER, that if any of the actions or events set forth above
in this subsection (d) shall be taken in respect of, or occur with
respect to, a Consolidated Subsidiary, such action or event shall not be
the basis for or give rise to an Event of Default under this subsection
(d) until five Business Days after the chief executive officer, chief
operation officer, principal financial officer or principal accounting
officer of the Company knows or has reason to know of the occurrence of
such action or event;
(x) Section 6.01 is amended by adding a new clause (j) to read
as follows:
(j) the Subsidiary Guaranty shall for any reason cease to be
valid and binding on or enforceable against each Subsidiary Guarantor
(other than by reason of a release of a Subsidiary Guarantor in
accordance with the terms of the Subsidiary Guaranty), or any Subsidiary
Guarantor shall so state in writing;
6
(y) Section 9.01 is amended by relettering clause (g) as clause
"(h) and inserting a new clause (g) to read as follows:
(g) reduce or limit in any material respect the obligations of
any Subsidiary Guarantor to the Lenders under Section 1(a)(i) of the
Subsidiary Guaranty or release or otherwise limit in any material respect
any Subsidiary Guarantor's liability to the Lenders with respect to its
obligations under the Subsidiary Guaranty (except, in each case, for a
release of a Subsidiary Guarantor in accordance with the terms of the
Subsidiary Guaranty)
(z) Section 9.08 is amended in full to read as follows:
SECTION 9.08. CONFIDENTIALITY. Neither the Agent nor any
Lender may disclose to any Person any confidential, proprietary or
non-public information of the Company furnished to the Agent or the
Lenders by the Company (such information being referred to collectively
herein as the "BORROWER INFORMATION"), except that each of the Agent and
each of the Lenders may disclose Borrower Information (i) to its and its
Affiliates' employees, officers, directors, agents and advisors who need
to know the Borrower Information in connection with this Agreement (it
being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Borrower Information and
instructed to keep such Borrower Information confidential on
substantially the same terms as provided herein), (ii) to the extent
requested by any applicable regulatory authority, (iii) to the extent
required by applicable laws or regulations or by any subpoena or similar
legal process, (iv) to any other party to this Agreement, (v) to the
extent necessary in connection with the exercise of any remedies
hereunder or any suit, action or proceeding relating to this Agreement or
the enforcement of rights hereunder, (vi) subject to an agreement for the
benefit of the Company containing provisions substantially the same as
those of this Section 9.08, to any assignee, participant, SPC, or
prospective assignee, participant or SPC, (vii) to the extent such
Borrower Information (A) is or becomes generally available to the public
on a non-confidential basis other than as a result of a breach of this
Section 9.08 by the Agent or such Lender, or (B) is or becomes available
to the Agent or such Lender on a nonconfidential basis from a source
other than the Company that, to the knowledge of the Agent or such
Lender, is not in violation of any confidentiality agreement with the
Company and (viii) with the consent of the Company. Notwithstanding
anything herein to the contrary, the Agent and the Lenders 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 the Agent or the Lenders relating to such U.S. tax
treatment and tax structure.
(aa) Exhibits B-1 and B-2 are replaced with Exhibits B-1 and B-2
to this Amendment.
(bb) New Exhibits F, G-1 and G-2 are added in the form of
Exhibits F, G-1 and G-2 to this Amendment.
SECTION 2. CONDITIONS OF EFFECTIVENESS(a) . This Amendment
shall become effective as of the date first above written when, and only
when, on or before May 15, 2003 the Agent shall have received
counterparts of this Amendment executed by the Company, Xxxxxxxx Xxxxx
Lintas K.K. and the Required Lenders or, as to any of the Lenders, advice
satisfactory to the Agent that such Lender has executed this Amendment
and the Agent shall have additionally received a certificate signed by a
duly authorized officer of the Company dated the date of this Amendment
stating that:
(i) The representations and warranties contained in
Section 3 are correct on and as of the date of such certificate as
though made on and as of such date; and
(ii) No event has occurred and is continuing that
constitutes a Default.
7
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants as follows:
(a) Each Borrower is a corporation duly organized, validly
existing, and, in the case of the Company, in good standing under the
laws of the jurisdiction of its organization, and has all corporate
powers and all material governmental licenses, authorizations, consents
and approvals required to carry on its business.
(b) The execution, delivery and performance by each Borrower of
this Amendment and the Credit Agreement and each of the Notes, as amended
hereby, are within such Borrower's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene, or
constitute a default under, any provision of law or regulation applicable
to such Borrower or of the certificate of incorporation of such Borrower
or of any judgment, injunction, order, decree, material agreement or
other instrument binding upon such Borrower or result in the creation or
imposition of any Lien on any asset of the Borrower or any of its
Consolidated Subsidiaries.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery and
performance by each Borrower of this Amendment or the Credit Agreement
and the Notes, as amended hereby, except the possibility of a post-facto
filing under the Japanese Foreign Exchange and Trade Control Law (Law No.
228 of 1949, as amended).
(d) This Amendment has been duly executed and delivered by each
Borrower. This Amendment and each of the Notes, as amended hereby, to
which such Borrower is a party are legal, valid and binding obligations
of such Borrower, enforceable against such Borrower in accordance with
their respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the rights of
creditors generally and subject to general principles of equity.
(e) There is no action, suit, investigation, litigation or
proceeding pending against, or to the knowledge of the Company,
threatened against the Company or any of its Consolidated Subsidiaries
before any court or arbitrator or any governmental body, agency or
official in which there is a significant probability of an adverse
decision that (i) would have a Material Adverse Effect or (ii) purports
to affect the legality, validity or enforceability of this Amendment, the
Credit Agreement or any Note or the consummation of the transactions
contemplated hereby.
SECTION 4. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND
THE NOTES. (a) On and after the effectiveness of this Amendment, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of
like import referring to the Credit Agreement, and each reference in the Notes
or the Designation Agreement relating to Xxxxxxxx Xxxxx Lintas K.K. to "the
Credit Agreement", "thereunder", "thereof" or words of like import referring to
the Credit Agreement, shall mean and be a reference to the Credit Agreement, as
amended by this Amendment.
(b) The Credit Agreement and the Notes, as specifically amended
by this Amendment, are and shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender or the Agent under the Credit Agreement,
nor constitute a waiver of any provision of the Credit Agreement.
8
SECTION 5. COSTS AND EXPENSES The Company agrees to pay on
demand all costs and expenses of the Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder
(including, without limitation, the reasonable fees and expenses of counsel for
the Agent) in accordance with the terms of Section 9.04 of the Credit Agreement.
SECTION 6. EXECUTION IN COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 7. GOVERNING LAW. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of
New York.
9
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By: /s/ XXXXXX XXXXX
_______________________________
Title: Vice President and Treasurer
XXXXXXXX XXXXX LINTAS K.K.
By: /s/ XXXXXX XXXXX
_______________________________
Title: Vice President and Treasurer
CITIBANK, N.A.,
as Agent and as Lender
By: /s/ XXXXXXX X. XXX
_______________________________
Title: Vice President
BANK ONE, NA
By: /s/ XXX XXXXXXX
_______________________________
Title: Director/Vice President
BANK OF AMERICA, N.A.
By
_______________________________
Title:
THE BANK OF
NEW YORK
By /s/ XXXXXXX X. XXXXX
_______________________________
Title: Senior Vice President
BARCLAYS BANK PLC
By: /s/ XXXXXXXX XXXX
_______________________________
Title: Director
JPMORGAN CHASE BANK
By: /s/ XXXXXXX XXXXX
_______________________________
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By________________________________
Title:
FLEET NATIONAL BANK
By: /s/ XXXXXX X. XXXX
_______________________________
Title: Senior Vice President
10
HSBC BANK USA
By: /s/ XXXXX XXXXXXXXX
_______________________________
Title: First Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ XXXXXX X. XXXXX
_______________________________
Title: Senior Vice President
LLOYDS TSB BANK PLC
By: /s/ XXXXXXX X. XXXXX
_______________________________
Title: Vice President
By: /s/ XXXXXXXXX RANKING
________________________________
Title: Assistant Vice President
SUNTRUST BANK
By: /s/ XXXXX X. XXXXXXXXX
_______________________________
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By________________________________
Title:
BNP PARIBAS
By________________________________
Title:
By________________________________
Title:
11
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, [The Interpublic Group of Companies, Inc.][Name
of Designated Subsidiary], refers to the Five-Year Credit Agreement, dated as of
June 27, 2000 and amended and restated as of December 31, 2002 (as amended or
modified from time to time, the "CREDIT AGREEMENT", the terms defined therein
being used herein as therein defined), among The Interpublic Group of Companies,
Inc., certain Lenders parties thereto, Citigroup Global Markets Inc. (formerly
known as Xxxxxxx Xxxxx Barney, Inc.), as lead arranger and book manager, Bank
One, NA, SunTrust Bank and HSBC Bank USA, as co-arrangers, Bank One, NA, as
documentation agent, SunTrust Bank, as syndication agent, and Citibank, N.A., as
Agent for said Lenders, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby requests a
Revolving Credit Borrowing under the Credit Agreement, and in that connection
sets forth below the information relating to such Revolving Credit Borrowing
(the "PROPOSED REVOLVING CREDIT BORROWING") as required by Section 2.02(a) of
the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing
is _______________, 200_.
(ii) The Type of Advances comprising the Proposed Revolving
Credit Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit
Borrowing is $_______________][for a Revolving Credit Borrowing in a
Committed Currency, list currency and amount of Revolving Credit
Borrowing].
[(iv) The initial Interest Period for each Eurocurrency Rate
Advance made as part of the Proposed Revolving Credit Borrowing is _____
month[s].]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Revolving
Credit Borrowing:
(A) the representations and warranties contained in Section 4.01
of the Credit Agreement and in Section __ of the Subsidiary Guaranty [and
in the Designation Agreement of the undersigned] are correct, before and
after giving effect to the Proposed Revolving Credit Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date; and
(B) no event has occurred and is continuing, or would result from
such Proposed Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
Very truly yours,
[THE INTERPUBLIC GROUP OF
COMPANIES, INC.][DESIGNATED SUBSIDIARY]
By___________________________
Title:
12
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, The Interpublic Group of Companies, Inc.[, on
behalf of [Name of Designated Subsidiary]], refers to the Five-Year Credit
Agreement, dated as of June 27, 2000 and amended and restated as of December 31,
2002 (as amended or modified from time to time, the "CREDIT AGREEMENT", the
terms defined therein being used herein as therein defined), among The
Interpublic Group of Companies, Inc., certain Lenders parties thereto, Citigroup
Global Markets Inc. (formerly known as Xxxxxxx Xxxxx Xxxxxx, Inc.), as lead
arranger and book manager, Bank One, NA, SunTrust Bank and HSBC Bank USA, as
co-arrangers, Bank One, NA, as documentation agent, SunTrust Bank, as
syndication agent, and Citibank, N.A., as Agent for said Lenders, and hereby
gives you notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement
that the undersigned hereby requests a Competitive Bid Borrowing under the
Credit Agreement, and in that connection sets forth the terms on which such
Competitive Bid Borrowing (the "PROPOSED COMPETITIVE BID BORROWING") is
requested to be made:
(A) Date of Competitive Bid Borrowing __________________________
(B) Amount of Competitive Bid Borrowing __________________________
(C) [Maturity Date] [Interest Period] __________________________
(D) Interest Rate Basis __________________________
(E) Day Count Convention __________________________
(F) Interest Payment Date(s) __________________________
(G) Currency __________________________
(H) Borrower's Account Location __________________________
(I) _________________________________ __________________________
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(a) the representations and warranties contained in Section
4.01 of the Credit Agreement and Section __ of the Subsidiary Guaranty [and in
the Designation Agreement of the undersigned] are correct, before and after
giving effect to the Proposed Competitive Bid Borrowing and to the application
of the proceeds therefrom, as though made on and as of such date;
(b) no event has occurred and is continuing, or would result
from the Proposed Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default; and
(c) the aggregate amount of the Proposed Competitive Bid
Borrowing and all other Borrowings to be made on the same day under the Credit
Agreement is within the aggregate amount of the unused Commitments of the
Lenders.
The undersigned hereby confirms that the Proposed Competitive Bid
Borrowing is to be made available to it in accordance with Section 2.03(a)(v) of
the Credit Agreement.
Very truly yours,
1
THE INTERPUBLIC GROUP
OF COMPANIES, INC.
By___________________________
Title:
2
EXHIBIT F - FORM OF
SUBSIDIARY GUARANTY
================================================================================
SUBSIDIARY GUARANTY
BY
CERTAIN SUBSIDIARIES OF
THE INTERPUBLIC GROUP OF COMPANIES, INC.
IN FAVOR OF
THE LENDERS REFERRED TO HEREIN
AND
THE BANK OF
NEW YORK, AS TRUSTEE
FOR THE BENEFIT OF THE NOTEHOLDERS LISTED ON SCHEDULE A HERETO
================================================================================
DATED AS OF [ ], 2003
3
TABLE OF CONTENTS
PAGE
Section 1. Guaranty 1
Section 2. Guaranty Absolute 2
Section 3. Waivers 3
Section 4. Subrogation 4
Section 5. Representations and Warranties 4
Section 6. Further Assurances 5
Section 7. No Waiver 5
Section 8. Amendments, Etc 5
Section 9. Addition and Removal of Guarantors 6
Section 10. Notices 6
Section 11. Continuing Guaranty; Transfer of Notes 7
Section 12. Severability 7
Section 13. Governing Law; Jurisdiction 7
Section 14. Taxes 7
Section 15. Execution in Counterparts 8
Section 16. Waiver of Jury Trial 9
SCHEDULES
Schedule A Noteholders
EXHIBITS
Exhibit A Accession Agreement
i
GUARANTY
This GUARANTY (this "GUARANTY"), dated as of [ ], 2003, is made by
the subsidiaries of The Interpublic Group of Companies, Inc. (the "BORROWER")
set forth on the signature pages hereof (each, a "GUARANTOR", and, collectively,
the "GUARANTORS"), in favor of the Lenders (as defined below) and The Bank of
New York ("BONY"), as Trustee for the benefit of the noteholders listed on
Schedule A hereto (each of the Lenders and BONY, a "GUARANTEED PARTY", and,
collectively, the "GUARANTEED PARTIES").
WHEREAS, the Borrower has entered into a Five-Year Credit
Agreement dated as of June 27, 2000 and a 364-Day Credit Agreement dated as of
May [ ], 2003 (together, as amended, supplemented or otherwise modified through
the date hereof, the "REVOLVER CREDIT AGREEMENTS") with the banks, financial
institutions and other institutional lenders parties thereto (collectively, the
"REVOLVER LENDERS") and Citibank, N.A., as agent for the Revolver Lenders
(Citibank, N.A., as agent, and the Revolver Lenders are collectively referred to
herein as the "REVOLVER CREDITORS");
WHEREAS, the Borrower has entered into five Note Purchase
Agreements with The Prudential Insurance Company of America ("PRUDENTIAL", and
together with the Revolver Creditors, the "LENDERS") dated May 26, 1994, April
28, 1995, October 31, 1996, August 18, 1997 and January 21, 1999, respectively
(collectively, as amended, supplemented or otherwise modified through the date
hereof, the "PRUDENTIAL NOTE PURCHASE AGREEMENTS", and, together with the
Revolver Credit Agreements, the "CREDIT AGREEMENTS");
WHEREAS, the Borrower has issued Zero-Coupon Convertible Senior
Notes due 2021, 7.25% Notes due 2011, 7.875% Notes due 2005 and 4.50%
Convertible Senior Notes due 2023 (collectively, the "NOTES") pursuant to a
Senior Debt Indenture with BONY, as Trustee, dated as of October 20, 2000, as
supplemented by a First Supplemental Indenture dated as of August 22, 2001, a
Second Supplemental Indenture dated as of December 14, 2001 and a Third
Supplemental Indenture dated as of March 13, 2003; and
WHEREAS, the Borrower and the Guarantors are affiliates engaged in
related businesses and the Guarantors (i) may have received and may receive a
portion of the loans extended under the Credit Agreements, (ii) may be entitled
to borrow directly under the Revolver Credit Agreements, (iii) may have
received, directly or indirectly, a portion of the proceeds from the issuance of
the Notes, (iv) from time to time receive guarantees from the Borrower in the
ordinary course of business and with respect to their own indebtedness and (v)
will have derived other substantial direct and indirect economic benefit from
the Credit Agreements and the Notes and therefore are willing to guarantee the
Obligations (as hereinafter defined);
NOW THEREFORE, in consideration of the foregoing, the Guarantors
hereby agree with and for the benefit of each Guaranteed Party as follows:
Section 1. GUARANTY.
(a) The Guarantors hereby unconditionally and
irrevocably, jointly and severally, guarantee, as a guarantee of payment
and not of collection, the prompt performance and payment in full by the
Borrower when due (whether at stated maturity, by acceleration or
otherwise) of the following (the "OBLIGATIONS"):
(i) all payment obligations of the Borrower under the
Credit Agreements, whether direct or indirect, absolute or
contingent, and whether for principal, interest, fees, breakage
costs, expenses, indemnification or otherwise; and
(ii) all payment obligations of the Borrower to the
noteholders listed on Schedule B hereto arising under the Notes.
The Guarantors further agree to pay all costs, fees and expenses
(including, without limitation, reasonable fees of outside
counsel) incurred by any Guaranteed Party in enforcing any rights
under this Guaranty. If the Borrower fails to pay any of the
Obligations in full when due (whether at stated maturity, by
1
acceleration or otherwise) and any grace period for payment of any
such Obligation has expired, the Guarantors, jointly and
severally, agree to pay the unpaid portion of such Obligation
within 2 business days after receipt by each of them of written
demand from the applicable Guaranteed Party.
(b) Each Guarantor, and by its acceptance of this
Guaranty, each Guaranteed Party, hereby confirms that it is the intention
of all such persons that this Guaranty and the obligations of each
Guarantor hereunder not constitute a fraudulent transfer or conveyance
for purposes of any applicable law relating to bankruptcy, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar foreign, federal or state law to the extent applicable to this
Guaranty and the obligations of each Guarantor hereunder. To effectuate
the foregoing intention, the Guaranteed Parties and the Guarantors hereby
irrevocably agree that the obligations of each Guarantor under this
Guaranty at any time shall be limited to the maximum amount as will
result in the obligations of such Guarantor under this Guaranty not
constituting a fraudulent transfer or conveyance.
(c) Each Guarantor hereby unconditionally and
irrevocably agrees that in the event any payment shall be required to be
made to any Guaranteed Party under this Guaranty, such Guarantor will
contribute, to the maximum extent permitted by law, amounts to each other
Guarantor with respect to any such payment.
Section 2. GUARANTY ABSOLUTE.
(a) The obligations of the Guarantors are joint and
several and are those of a primary obligor, and not merely a surety, and
are independent of the Obligations. A separate action or actions may be
brought against any Guarantor whether or not an action is brought against
the Borrower, any other guarantor or other obligor in respect of the
Obligations or whether the Borrower, any other guarantor or any other
obligor in respect of the Obligations is joined in any such action or
actions.
(b) The liability of the Guarantors under this Guaranty
shall be absolute and unconditional irrespective of, and each Guarantor
hereby irrevocably waives, to the extent permitted by applicable law, any
defenses it may now have or hereafter acquire relating to any or all of
the following:
(i) any lack of genuineness, validity, legality
or enforceability of the Credit Agreements, the Notes or any other
document, agreement or instrument relating thereto or any
assignment or transfer of any thereof;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Obligations, or any waiver, indulgence, compromise, renewal,
extension, amendment, modification of, or addition, consent,
supplement to, or consent to departure from, or any other action
or inaction under or in respect of, the Credit Agreements, the
Notes or any other document, instrument or agreement relating to
the Obligations or any other instrument or agreement referred to
therein or any assignment or transfer of any thereof;
(iii) any release or partial release of any other
guarantor or other obligor in respect of the Obligations;
(iv) any exchange, release or non-perfection of
any collateral for all or any of the Obligations, or any release,
or amendment or waiver of, or consent to departure from, any
guaranty or security, for all or any of the Obligations;
(v) any furnishing of any additional security for
any of the Obligations;
(vi) the liquidation, bankruptcy, insolvency or
reorganization of the Borrower, any other guarantor or other
obligor in respect of the Obligations or any action taken with
respect to this Guaranty by any trustee or receiver, or by any
court, in any such proceeding; or
2
(vii) any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable
discharge of, any Guarantor.
(c) This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time payment or performance of
the Obligations, or any part thereof, is, upon the insolvency, bankruptcy
or reorganization of the Borrower or any Guarantor or otherwise pursuant
to applicable law, rescinded or reduced in amount or must otherwise be
restored or returned by any Guaranteed Party, all as though such payment
or performance had not been made.
Section 3. WAIVERS.
(a) To the extent permitted by applicable law, each
Guarantor hereby unconditionally and irrevocably waives promptness,
diligence, notice of acceptance and any and all other notices with
respect to any of the Obligations and this Guaranty, other than the
notice provided for in Section 1 hereof, and any requirement that any
Guaranteed Party protect, secure, perfect or insure any security interest
in or any lien on any property subject thereto or exhaust any right or
take any action against the Borrower, any other guarantor or any other
person or any collateral or security or any balance of any deposit
accounts or credit on the books of any of the Lenders in favor of the
Borrower or any Guarantor.
(b) Each Guarantor hereby unconditionally and
irrevocably waives any right to revoke this Guaranty and acknowledges
that this Guaranty is continuing in nature and applies to all
Obligations, whether existing now or in the future.
(c) Each Guarantor hereby unconditionally and
irrevocably waives (i) any defense arising by reason of any claim or
defense based upon an election of remedies by any Guaranteed Party that
in any manner impairs, reduces, releases or otherwise adversely affects
the subrogation, reimbursement, exoneration, contribution or
indemnification rights of such Guarantor or other rights of such
Guarantor to proceed against the Borrower, any other guarantor or any
other person or any collateral and (ii) any defense based on any right of
set-off or counterclaim against or in respect of the obligations of such
Guarantor hereunder.
(d) Each Guarantor hereby unconditionally and
irrevocably waives any duty on the part of any Guaranteed Party to
disclose to such Guarantor any matter, fact or thing relating to the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower or any of its subsidiaries now or
hereafter known by such Guaranteed Party.
Each Guarantor acknowledges that it will receive substantial direct and
indirect benefits from the financing arrangements contemplated by the
Credit Agreements and the Notes and that the waivers set forth in Section
2 and this Section 3 are knowingly made in contemplation of such
benefits.
Section 4. SUBROGATION. The Guarantors will not exercise
any rights which they may acquire by way of rights of subrogation under this
Guaranty, by any payment made hereunder or otherwise, until the latest of (i)
all the Obligations shall have been irrevocably paid in full and in cash, (ii)
the Credit Agreements shall have been terminated and (iii) the Notes shall have
been cancelled.
Section 5. REPRESENTATIONS AND WARRANTIES. The
Guarantors jointly and severally represent and warrant to the Guarantied Parties
as follows:
(a) EXISTENCE AND POWER. Each Guarantor is a
[corporation] duly formed and validly existing under the laws of the
jurisdiction indicated on the signature pages hereof opposite its name,
is in good standing in such jurisdiction and has all requisite power and
authority to own its property and to carry on its business as now
conducted.
3
(b) AUTHORITY. Each Guarantor has full power and
authority to execute and deliver this Guaranty and to perform its
obligations hereunder, all of which have been duly authorized by all
proper and necessary action of the Guarantor.
(c) AUTHORITY OF OFFICERS. The officer of each Guarantor
who is executing this Guaranty is properly in office and is duly
authorized to execute the same.
(d) BINDING AGREEMENT. This Guaranty constitutes the
legal, valid and binding obligation of each Guarantor enforceable against
it in accordance with its terms except as such enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws affecting
the enforcement of creditors' rights generally.
(e) LITIGATION. There are no actions, suits or
arbitration proceedings pending or, to the knowledge of any Guarantor,
threatened against any Guarantor, at law or in equity, which,
individually or in the aggregate, if adversely determined, would
materially adversely affect the financial condition of any Guarantor or
materially impair the ability of such Guarantor to perform its
obligations under this Guaranty.
(f) NO CONFLICTING LAW OR AGREEMENTS. The execution,
delivery and performance by each Guarantor of this Guaranty (i) do not
violate any provision of the articles of incorporation or by-laws (or
equivalent constituent documents) of such Guarantor; (ii) do not violate
in any material respect any order, decree or judgment, or any provision
of any statute, rule or regulation applicable to or binding on such
Guarantor or any of its property; and (iii) do not violate or conflict
with, result in a breach of or constitute (with notice or lapse of time
or both) a material default under, any material mortgage, indenture,
contract or other material agreement to which such Guarantor is a party,
or by which any of its property is bound.
Section 6. FURTHER ASSURANCES. The Guarantors agree that
at any time and from time to time, at the expense of the Guarantors, the
Guarantors will promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or desirable, or
that the Guaranteed Parties may reasonably request, to enable the Guaranteed
Parties to protect and to exercise and enforce their respective rights and
remedies hereunder.
Section 7. NO WAIVER. No failure on the part of any
Guaranteed Party to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Section 8. AMENDMENTS, ETC. Except as set forth in
Section 9 hereof, no amendment or waiver of any provision of this Guaranty, nor
consent to any departure by the Guarantors herefrom, shall in any event be
effective unless the same shall be in writing and signed by (a) each Guarantor,
(b) so long as the Revolver Credit Agreements are in effect, Citibank, N.A.,
acting at the direction of the Required Lenders under (and as defined in) each
such Revolving Credit Agreement and (c) so long as the Prudential Note Purchase
Agreements are in effect, Prudential; PROVIDED, HOWEVER, that if at any time it
becomes necessary for this Guaranty to be qualified under the Trust Indenture
Act of 1939, as amended, this Guaranty may be amended without any further action
on the part of any Guarantor or any Guaranteed Party in order to incorporate
such provisions as would cause it to be so qualified. Any amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which made or given.
Section 9. ADDITION AND REMOVAL OF GUARANTORS.
(a) In the event that any Guarantor is dissolved or
ceases to be a consolidated subsidiary of the Borrower, (i) such
Guarantor shall, automatically and without any further action on behalf
of any of the Guarantors or the Guaranteed Parties, cease to be a
Guarantor and (ii) the definition of "Guarantor" shall, automatically and
without any further action on behalf of any of the Guarantors or the
Guaranteed Parties, be amended to remove such Guarantor therefrom.
4
(b) In the event that any consolidated subsidiary of the
Borrower wishes to become a Guarantor, such consolidated subsidiary shall
execute and deliver an accession agreement substantially in the form of
Exhibit A hereto (an "ACCESSION AGREEMENT"). Upon execution and delivery
of such Accession Agreement, and without any further action on behalf of
any of the Guarantors or the Guaranteed Parties, (i) such consolidated
subsidiary shall become a Guarantor and (ii) the definition of
"Guarantor" shall automatically be amended to include such consolidated
subsidiary therein, in each case as of the date of such Accession
Agreement.
Section 10. NOTICES. All notices, requests and other
communications provided for hereunder shall be in writing and mailed by
overnight delivery, transmitted by facsimile or hand delivered:
(i) if to any of the Revolver Creditors,
addressed x/x Xxxxxxxx, N.A., Xxx Xxxxx Xxx, Xxxxx 000, Xxx
Xxxxxx, XX 00000, Attention: May Xxxx (Facsimile: (000) 000-0000);
(ii) if to Prudential, addressed c/o Prudential
Capital Group, 1114 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx,
XX 00000, Attention: Xxxxxxx Xxxxxx (Facsimile: (000) 000-0000);
(iii) if to BONY, addressed to The Bank of
New
York, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx Xxxx, Xxx Xxxx, XX 00000,
Attention: Corporate Trust Trustee Administration (Facsimile:
(000) 000-0000);
(iv) if to the Guarantors, at their respective
addresses set forth on the signature page hereof, with a copy to
the Borrower at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000,
Attention: Vice President and Treasurer (Facsimile: (212)
621-5748);
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and other
communications shall be effective (x) upon receipt thereof, when mailed by
overnight delivery or hand delivered or (y) upon receipt of confirmation of
facsimile transmission, when transmitted by facsimile.
Section 11. CONTINUING GUARANTY; TRANSFER OF NOTES. This
Guaranty is a continuing guaranty and shall (a) remain in full force and effect
until the latest of (i) payment in full of the Obligations and all other amounts
payable under this Guaranty, (ii) the termination of the Credit Agreements and
(iii) the cancellation of the Notes; (b) be binding upon the Guarantors and
their respective successors and assigns; and (c) inure to the benefit of the
Guaranteed Parties and their respective successors and assigns. Without limiting
the generality of clause (c) of the immediately preceding sentence, if any
Revolver Lender assigns or otherwise transfers all or any portion of its rights
and obligations under the applicable Revolver Credit Agreement (including,
without limitation, all or any portion of its commitments, the advances owing to
it and the note or notes held by it) to any other person in accordance with the
terms thereof, then such other person shall thereupon become vested with all the
benefits in respect of such transferred rights and obligations granted to such
Guaranteed Party herein.
Section 12. SEVERABILITY. If for any reason any provision
or provisions hereof are determined to be invalid and contrary to any existing
or future law, such invalidity shall not, to the fullest extent permitted by
law, impair the operation of or effect of those portions of this Guaranty that
are valid.
Section 13. GOVERNING LAW; JURISDICTION.
(a) This Guaranty shall be governed by, and construed
and enforced in accordance with, the law of the State of
New York.
(b) Any legal action or proceeding with respect to this
Guaranty may be brought in the courts of the State of
New York or of the
United States of America for the Southern District of
New York, and by
execution and delivery of this Guaranty, each Guarantor hereby consents,
for itself and in respect of its property, to the non-exclusive
jurisdiction of the aforesaid courts. To the fullest extent permitted by
law, each
5
Guarantor hereby irrevocably waives any objection, including without
limitation, any objection to the laying of venue or based on the grounds
of FORUM NON CONVENIENS, which it may now or hereafter have to the
bringing of any action or proceeding in such jurisdiction in respect of
this Guaranty or any document related hereto. Notwithstanding any of the
foregoing, any suit, action or proceeding against the Guarantors based on
this Guaranty may be instituted by any Guaranteed Party in any court of
competent jurisdiction.
Section 14. TAXES. All payments to be made by a Guarantor
under this Guaranty shall be made without set-off or counterclaim and without
deduction for any taxes unless such Guarantor is required by law to make
payments subject to such taxes. All taxes in respect of payments made under this
Guaranty payable by a Guarantor shall be paid by such Guarantor when due and in
any event prior to the date on which penalties attach thereto. Such Guarantor
will indemnify each Guaranteed Party with respect to such taxes paid by such
Guaranteed Party; PROVIDED that, if such Guaranteed Party receives a refund of
any portion of such taxes, it shall pay the amount of any such refund to such
Guarantor. In addition, if any taxes or amounts in respect thereof must be
deducted from any amounts payable or paid by such Guarantor hereunder, such
Guarantor shall pay at the same time as such payment is due such additional
amounts as may be necessary to ensure that each Guaranteed Party receives a net
amount equal to the full amount which it would have received had payment not
been made subject to such tax.
Section 15. EXECUTION IN COUNTERPARTS. This Guaranty and
each amendment, waiver and consent with respect hereto may be executed in any
number of counterparts and by different parties hereto and thereto 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 Guaranty by
telecopier shall be effective as delivery of an original executed counterpart of
this Guaranty.
6
Section 16. WAIVER OF JURY TRIAL. EACH GUARANTOR WAIVES
ANY RIGHT IT MAY HAVE TO A JURY TRIAL IN CONNECTION WITH ANY ACTION, SUIT OR
PROCEEDING ARISING OUT OF OR RELATED IN ANY WAY TO THIS GUARANTY.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
[GUARANTOR] - [STATE OF INCORPORATION] [GUARANTOR] - [STATE OF INCORPORATION]
By: By:
-------------------------------------------------- --------------------------------------------------
Title: Title:
----------------------------------------------- -----------------------------------------------
Address: Address:
---------------------------------------- ----------------------------------------
Facsimile: Facsimile:
------------------------------------------- -------------------------------------------
[GUARANTOR] - [STATE OF INCORPORATION] [GUARANTOR] - [STATE OF INCORPORATION]
By: By:
-------------------------------------------------- --------------------------------------------------
Title: Title:
----------------------------------------------- -----------------------------------------------
Address: Address:
---------------------------------------- ----------------------------------------
Facsimile: Facsimile:
------------------------------------------- -------------------------------------------
[GUARANTOR] - [STATE OF INCORPORATION] [GUARANTOR] - [STATE OF INCORPORATION]
By: By:
-------------------------------------------------- --------------------------------------------------
Title: Title:
----------------------------------------------- -----------------------------------------------
Address: Address:
---------------------------------------- ----------------------------------------
Facsimile: Facsimile:
------------------------------------------- -------------------------------------------
[GUARANTOR] - [STATE OF INCORPORATION] [GUARANTOR] - [STATE OF INCORPORATION]
By: By:
-------------------------------------------------- --------------------------------------------------
Title: Title:
----------------------------------------------- -----------------------------------------------
Address: Address:
---------------------------------------- ----------------------------------------
Facsimile: Facsimile:
------------------------------------------- -------------------------------------------
7
SCHEDULE A
NOTEHOLDERS
Holders of the 4.50% Convertible Senior Notes due
2023
Holders of the Zero-Coupon Convertible Senior Notes due
2021
Holders of the 7.25% Notes due 2011
Holders of the 7.875% Notes due 2005
1
EXHIBIT A
ACCESSION AGREEMENT
By execution of this Accession Agreement, the undersigned
consolidated subsidiary of The Interpublic Group of Companies, Inc. (the
"BORROWER") hereby agrees, as of the date noted below, to become a party to and
to be bound by all of the terms and conditions of the Guaranty, dated as of
[ ], 2003, by certain subsidiaries of the Borrower in favor of the
lenders named therein and The Bank of
New York, as trustee for the benefit of
the noteholders named therein (the "GUARANTY") to the same extent as each of the
other Guarantors thereunder. Capitalized terms used but not defined herein shall
have the respective meanings ascribed thereto in the Guaranty. By execution of
this Accession Agreement, the undersigned shall have all the rights of a
Guarantor and shall observe all the obligations of a Guarantor, in each case as
specified in the Guaranty. Delivery of an executed counterpart of a signature
page to this Accession Agreement by telecopier shall be effective as delivery of
an original executed counterpart of this Accession Agreement.
[DATE]
[GUARANTOR] - [STATE OF INCORPORATION]
By:
--------------------------------------
Title:
-----------------------------------
Address:
---------------------------------
Facsimile:
-------------------------------
1
EXHIBIT G-1 - FORM OF
OPINION OF OUTSIDE
COUNSEL OF THE
SUBSIDIARY GUARANTOR
[Date]
To each of the Lenders in the below-referenced
Credit Agreement
[NAME OF THE SUBSIDIARY GUARANTOR]
Ladies and Gentlemen:
We have acted as special counsel to [name of the Subsidiary
Guarantor] (the "SUBSIDIARY GUARANTOR") in connection with the preparation,
execution and delivery of the subsidiary guaranty (the "SUBSIDIARY GUARANTY")
pursuant to Section 5.01(i) of the
Five Year Credit Agreement, dated as of June
27, 2000 and amended and restated as of December 31, 2002 (as amended to date,
the "CREDIT AGREEMENT"), among The Interpublic Group of Companies, Inc. (the
"COMPANY"), the Lenders parties thereto, Citigroup Global Markets Inc. (formerly
known as Xxxxxxx Xxxxx Barney, Inc.), as lead arranger and book manager, Bank
One, NA, SunTrust Bank and HSBC Bank USA, as co-arrangers, Bank One, NA, as
documentation agent, SunTrust Bank, as syndication agent, and Citibank, N.A., as
Agent for said Lenders.
In arriving at the opinions expressed below, we have examined the
following documents:
(1) an executed copy of the Credit Agreement;
(2) an executed copy of the Subsidiary Guaranty; and
(3) executed copies of the other documents furnished by the
Subsidiary Guarantor pursuant to Section 5.01(i) of the Credit Agreement.
In addition, we have reviewed the originals or copies certified or
otherwise identified to our satisfaction of all such corporate records of the
Subsidiary Guarantor and such other instruments and other certificates of public
officials, officers and representatives of the Subsidiary Guarantor and such
other persons, and we have made such investigations of law, as we have deemed
necessary as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. In addition, we have
assumed and have not verified the accuracy as to factual matters of each
document we have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company in the Credit Agreement and of the
Subsidiary Guarantor in the Subsidiary Guaranty).
Based upon the foregoing and subject to the further assumptions
and qualifications set forth below, it is our opinion that:
1. The Subsidiary Guarantor has the corporate power to enter
into the Subsidiary Guaranty and to perform its obligations thereunder.
1
2. The execution and delivery by the Subsidiary Guarantor of
the Subsidiary Guaranty have been duly authorized by all necessary
corporate action of the Subsidiary Guarantor.
3. The performance by the Subsidiary Guarantor of its
obligations under the Subsidiary Guaranty (a) does not require any
consent, approval, authorization, registration or qualification of or
with any governmental authority of the United States, [the State of
Delaware or the State of
New York], and (b) does not result in a
violation of any applicable United States federal [or New York State law,
rule or regulation or the Delaware General Corporation].
4. The Subsidiary Guaranty is a valid, binding and enforceable
obligation of the Subsidiary Guarantor.
Insofar as the foregoing opinions relate to the validity, binding
effect or enforceability of any agreement or obligation of the Subsidiary
Guarantor, (a) we have assumed that each party to such agreement or obligation
has satisfied those legal requirements that are applicable to it to the extent
necessary to make such agreement or obligation enforceable against it (except
that no such assumption is made as to the Subsidiary Guarantor regarding matters
of the federal law of the United States of America[, the law of the State of New
York or the General Corporation Law of the State of Delaware]) and (b) such
opinions are subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and to general principles of equity.
We have assumed that any assignments made by or among the
guaranteed parties of their rights and obligations under the Subsidiary Guaranty
will not contravene New York Judiciary Law Section 489 (which makes it a
criminal offense to take an assignment of a debt obligation with the intent of
and for the purpose of bringing an action or proceeding thereon).
We note that the designations in Section 13(b) of the
Subsidiary Guaranty are (notwithstanding the waiver contained in Section
14(b)) subject to the power of such federal court to transfer actions
pursuant to 28 U.S.C. Section 1404(a) or to dismiss such actions or
proceedings on the grounds that such a federal court is an inconvenient forum
for such action or proceeding.
With respect to the first sentence of Section 13(b) of the
Subsidiary Guaranty, we express no opinion as to the subject matter jurisdiction
of any United States federal court to adjudicate any action relating to the
Subsidiary Guaranty where jurisdiction based on diversity of citizenship under
28 U.S.C. Section 1332 does not exist.
The opinion expressed in paragraph 3 above relates only to those
laws, rules and regulations that, in our experience, are normally applicable to
transactions of the type referred to in the Subsidiary Guaranty.
The foregoing opinions are limited to the law of the [State of New
York, the General Corporation Law of the State of Delaware] and the federal law
of the United States, but we express no opinion as to any state securities or
Blue Sky laws or United States federal securities laws.
2
We are furnishing this opinion letter to you solely for your
benefit in connection with the Subsidiary Guaranty. This opinion letter is not
to be used, circulated, quoted or otherwise referred to for any other purpose.
Notwithstanding the foregoing, a copy of this opinion letter may be furnished
to, and relied upon by, your successors and a permitted transferee who becomes a
party to the Credit Agreement as a Lender thereunder, and you or any such
successor or transferee may show this opinion to any governmental authority
pursuant to requirements of applicable law or regulations. The opinions
expressed herein are, however, rendered on and as of the date hereof, and we
assume no obligation to advise you or any such transferee or governmental
authority or any other person, or to make any investigations, as to any legal
developments or factual matters arising subsequent to the date hereof that might
affect the opinions expressed herein.
Very truly yours,
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EXHIBIT G-2 - FORM OF
OPINION OF IN-HOUSE COUNSEL
Of THE SUBSIDIARY GUARANTOR
[Date]
To each of the Lenders parties
to the Credit Agreement dated
as of June 27, 2000 and amended and restated as of December 31, 2002
among The Interpublic Group of Companies, Inc.,
said Lenders and Citibank, N.A.,
as Agent for said Lenders, and
to Citibank, N.A., as Agent
[NAME OF THE SUBSIDIARY GUARANTOR]
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 5.01(i) of
the
Five Year Credit Agreement, dated as of June 27, 2000 and amended and
restated as of December 31, 2002 (as amended to date, the "CREDIT AGREEMENT"),
among The Interpublic Group of Companies, Inc. (the "COMPANY"), the Lenders
parties thereto, Citigroup Global Markets Inc. (formerly known as Xxxxxxx Xxxxx
Xxxxxx, Inc.), as lead arranger and book manager, Bank One, NA, SunTrust Bank
and HSBC Bank USA, as co-arrangers, Bank One, NA, as documentation agent,
SunTrust Bank, as syndication agent, and Citibank, N.A., as Agent for said
Lenders. Terms defined in the Credit Agreement are used herein as therein
defined.
I have acted as [General Counsel] for [name of the Subsidiary
Guarantor] (the "SUBSIDIARY GUARANTOR") in connection with the preparation,
execution and delivery of the Subsidiary Guaranty.
In arriving at the opinions expressed below, I have examined the
following documents:
(1) An executed copy of the Credit Agreement.
(2) An executed copy of the Subsidiary Guaranty.
(3) The other documents furnished by the Subsidiary Guarantor
pursuant to Section 5.01(i) of the Credit Agreement.
(4) A copy of the [Articles] [Certificate] of Incorporation of
the Subsidiary Guarantor and all amendments thereto (the "CHARTER").
(5) A copy of the by-laws of the Subsidiary Guarantor and all
amendments thereto (the "BY-LAWS").
(6) A certificate of the Secretary of State of [ ], dated
__________, 2003, attesting to the continued corporate existence and good
standing of the Subsidiary Guarantor in that State.
In addition, I have examined the originals, or copies certified or
otherwise identified to my satisfaction, of such other corporate records of the
Subsidiary Guarantor, certificates of public officials and of officers of the
4
Subsidiary Guarantor and such other persons as I have deemed necessary as a
basis for the opinions expressed below.
In rendering the opinions expressed below, I have assumed the
authenticity of all documents submitted to me as originals and the conformity to
the originals of all documents submitted to me as copies. In addition, I have
assumed and have not verified the accuracy as to factual matters of each
document I have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company in the Credit Agreement and of the
Subsidiary Guarantor in the Subsidiary Guaranty).
Based upon the foregoing and subject to the further assumptions
and qualifications set forth below, it is my opinion that:
1. The Subsidiary Guarantor is a corporation validly existing
and in good standing under the laws of the State of [ ].
2. The execution, delivery and performance by the Subsidiary
Guarantor of the Subsidiary Guaranty to be delivered by it, and the
consummation of the transactions contemplated thereby, are within the
Subsidiary Guarantor's corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) the Charter or the
By-laws or (ii) any material contractual or legal restriction known to me
contained in any material document to which the Subsidiary Guarantor is a
party or by which it is bound. The Subsidiary Guaranty has been duly
executed and delivered on behalf of the Subsidiary Guarantor.
3. To the best of my knowledge, no authorization, approval or
other action by, and no notice to or filing with, any third party is
required for the execution, delivery and performance by the Subsidiary
Guarantor of the Subsidiary Guaranty.
4. To the best of my knowledge, there are no pending or
overtly threatened actions or proceedings against the Subsidiary
Guarantor or any of its subsidiaries before any court, governmental
agency or arbitrator that purport to affect the validity, binding effect
or enforceability of the Subsidiary Guaranty or the consummation of the
transactions contemplated thereby or that are likely to have a materially
adverse effect upon the financial condition or operations of the
Subsidiary Guarantor and its subsidiaries taken as a whole.
The foregoing opinions are limited to the law of the State of [New
York][, the General Corporation Law of the State of Delaware] and the Federal
law of the United States.
5
I am furnishing this opinion letter to you solely for your benefit
in connection with the Subsidiary Guaranty. This opinion letter is not to be
used, circulated, quoted or otherwise referred to for any other purpose.
Notwithstanding the foregoing, a copy of this opinion letter may be furnished
to, and relied upon by, your successors and a permitted transferee who becomes a
party to the Credit Agreement as a Lender thereunder, and you or any such
successor or transferee may show this opinion to any governmental authority
pursuant to requirements of applicable law or regulations. The opinions
expressed herein are, however, rendered on and as of the date hereof, and I
assume no obligation to advise you or any such transferee or governmental
authority or any other person, or to make any investigations, as to any legal
developments or factual matters arising subsequent to the date hereof that might
affect the opinions expressed herein.
Very truly yours,
6
