Exhibit 4.7
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of September 5, 2003
amending and restating the Credit Agreement dated as of September 6, 2002 (as in
effect prior to such amendment and restatement, the "Credit Agreement") among
THE DUN & BRADSTREET CORPORATION (the "Company"), the BORROWING SUBSIDIARIES
party thereto (the "Borrowing Subsidiaries" and together with the Company, the
"Borrowers"), the LENDERS party thereto (the "Lenders"), JPMORGAN CHASE BANK, as
Administrative Agent (the "Administrative Agent"), CITIBANK, N.A. and BANK OF
TOKYO-MITSUBISHI TRUST COMPANY, as Co-Syndication Agents, and THE BANK OF NEW
YORK and THE NORTHERN TRUST COMPANY, as Co-Documentation Agents.
W I T N E S S E T H:
WHEREAS, the parties hereto desire to amend the Credit Agreement to (i)
extend the Revolver Termination Date from the date that is 364 days after the
effective date of the Credit Agreement to the date that is 364 days after the
Amendment Effective Date (as hereinafter defined), (ii) make any necessary
conforming changes with respect to the amendment set forth in clause (i) above,
(iii) amend the Negative Covenants in Article 6 of the Credit Agreement, (iv)
amend the Confidentiality provisions in Section 10.12 of the Credit Agreement
and (v) amend the Commitments of each Lender, all as set forth herein;
WHEREAS, the parties hereto wish to amend the Credit Agreement as set
forth herein and to restate the Credit Agreement in its entirety to read as set
forth in the Credit Agreement with the amendments specified below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit
Agreement has the meaning assigned to such term in the Credit Agreement.
Each reference to "hereof", "hereunder", "herein" and "hereby" and each
other similar reference and each reference to "this Agreement" and each
other similar reference contained in the Credit Agreement shall, after the
Amendment Effective Date (as defined below), refer to the Credit Agreement
as amended and restated hereby.
SECTION 2. Definitions.
(a) The definition of "Amendment Effective Date" in Section 1.01 of
the Credit Agreement is amended by replacing the reference to
"September 6, 2002" with "September 5, 2003".
(b) The definition of "Disclosed Matters" in Section
1.01 of the Credit Agreement is amended by replacing the
reference to "2002" with "2003".
(c) The definition of "Information Memorandum" in Section 1.01 of the
Credit Agreement is deleted in its entirety.
(d) The definition of "Revolver Termination Date" in Section 1.01 of
the Credit Agreement is amended to read in full as follows:
"Revolver Termination Date" means September 3, 2004 or, if such
day is not a Business Day, the next preceding Business Day.
(e) The definitions in Section 1.01 of the Credit Agreement are
further amended by adding the following definition in the
appropriate alphabetical order:
"Existing Five-Year Credit Agreement" means the Five-Year Credit
Agreement dated as of September 11, 2000 among the Borrower, the
Borrowing Subsidiaries party thereto, the Lenders party thereto,
JPMorgan Chase Bank (as successor to The Chase Manhattan Bank),
as administrative agent, Citibank, N.A., as syndication agent and
The Bank of New York, as documentation agent.
SECTION 3. Total Debt to EBITDA Ratio. Section 6.05 of the Credit
Agreement is amended by replacing the reference therein to "4.0" with
"3.5".
SECTION 4. Negative Covenants. The Negative Covenants under Article 6
of the Credit Agreement are amended by adding the following section in the
appropriate numerical order:
"Section 6.07. Subsidiary Debt. The Company will not permit the aggregate
principal amount of Indebtedness of the Subsidiaries (excluding any
Indebtedness of a Subsidiary (i) owed to the Borrower or another
Subsidiary, (ii) outstanding hereunder or (iii) outstanding under the
Existing Five-Year Credit Agreement) at any time outstanding to exceed
$50,000,000."
SECTION 5. Representation regarding Financial Condition and No
Material Adverse Change.
(a) Section 3.04(a) of the Credit Agreement are amended by replacing
each reference therein to (i) "2001" with "2002" and (ii) "2002"
with "2003".
(b) Section 3.04(b) of the Credit Agreement is deleted in its
entirety.
SECTION 6. Confidentiality. Section 10.12 of the Credit Agreement is
amended by adding the following new paragraph immediately after the
existing paragraph:
"Notwithstanding anything herein to the contrary, each party hereto and
each of its employees, representatives, or other agents may disclose to any
and all Persons, without limitation of any kind, the tax treatment and tax
structure of this Agreement and the transactions contemplated hereby and
all materials of any kind, including opinions or other tax analyses, that
have been provided to it by any other party relating to such tax treatment
and tax structure."
SECTION 7. Changes in Commitments. With effect from and including the
Amendment Effective Date (as defined in Section 11 below), (i) each Person
listed on the signature pages hereof which is not a party to the Credit
Agreement (each, a "New Lender") shall become a Lender party to the Credit
Agreement and (ii) the Commitment of each Lender shall be the amount set
forth opposite the name of such Lender on the signature pages hereof. On
the Amendment Effective Date, any Lender whose Commitment is changed to
zero (each, an "Exiting Lender") shall cease to be a Lender party to the
Credit Agreement, and all accrued fees and other amounts payable under the
Credit Agreement for the account of each Exiting Lender shall be due and
payable on such date; provided that the provisions of Sections 2.14, 2.16
and 10.03 of the Credit Agreement shall continue to inure to the benefit of
each Exiting Lender after the Amendment Effective Date.
SECTION 8. Representations of Borrower. Each Borrower represents and
warrants that (i) the representations and warranties of such Borrower set
forth in Article 3 of the Credit Agreement, after giving effect to this
Amendment and Restatement, are true and correct as though made on and as of
the Amendment Effective Date and (ii) no Default has occurred and is
continuing on such date.
SECTION 9. Governing Law. This Amendment and Restatement shall be
governed by and construed in accordance with the laws of the State of New
York.
SECTION 10. Counterparts. This Amendment and Restatement may be signed
in any number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
SECTION 11. Effectiveness. This Amendment and Restatement shall become
effective as of the date hereof when the following conditions are met (the
"Amendment Effective Date"):
(a) the Administrative Agent shall have received from each of the
Borrowers and the Lenders a counterpart hereof signed by such
party or facsimile or other written confirmation (in form
satisfactory to the Administrative Agent) that such party has
signed a counterpart hereof;
(b) the Administrative Agent shall have received an opinion of Xxxxx
X. Xxxxxxxx, Senior Vice President, General Counsel and Secretary
for the Company, dated the Amendment Effective Date substantially
in the form of Exhibit A hereto; and
(c) all fees and other amounts due and payable on or prior to the
Amendment Effective Date, including, to the extent invoiced,
reimbursement or payment of all reasonable out-of-pocket expenses
required to be reimbursed or paid by the Company hereunder.
SECTION 12. Confirmation of Agreement. Except as amended hereby, all
of the terms of the Credit Agreement shall remain in full force and effect
and are hereby confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Restatement to be duly executed as of the date first above written.
THE DUN & BRADSTREET CORPORATION
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Treasurer
Commitment
$16,500,000 JPMORGAN CHASE BANK,
individually, as Lead Arranger and
as Administrative Agent
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
$14,750,000 CITIBANK, N.A., individually and as
Co-Syndication Agent
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
$14,750,000 BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, individually and as Co-
Syndication Agent
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
$14,750,000 THE BANK OF NEW YORK, individually
and as Co-Documentation Agent
By: /s/ Xxxxxx Xxxx
---------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
$14,750,000 THE NORTHERN TRUST COMPANY,
individually and as Co-Documentation
Agent
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
$12,250,000 SUNTRUST BANK, individually and as
Co-Agent
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
Title: Director
$12,250,000 BARCLAYS BANK PLC, individually and
as Co-Agent
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title: Director
EXHIBIT A
September 5, 2003
To (a) each of the lending institutions (the "Lenders") listed on Schedule 1
hereto which are parties on the date hereof to the Amended and Restated Credit
Agreement, dated as of September 5, 2003 (the "Amended and Restated Credit
Agreement"), among The Dun & Bradstreet Corporation (the "Company"), the
Borrowing Subsidiaries party thereto, the Lenders party thereto, JPMorgan Chase
Bank, as Administrative Agent (in such capacity, the "Administrative Agent"),
Citibank, N.A. and Bank of Tokyo-Mitsubishi Trust Company, as Co-Syndication
Agents and The Bank of New York and The Northern Trust Company, as
Co-Documentation Agents and (b) the Administrative Agent
Ladies and Gentlemen:
I am Senior Vice President, General Counsel and Corporate Secretary of
the Company and have acted as counsel to the Company in connection with the
preparation, execution and delivery of the Amendment and Restatement, dated as
of the date hereof, of the Credit Agreement dated as of September 7, 2001 among
the Company, the Borrowing Subsidiaries party thereto, the financial
institutions referred to therein, JPMorgan Chase Bank, as Administrative Agent,
Citibank, N.A. and Bank of Tokyo-Mitsubishi Trust Company, as Co-Syndication
Agents, and The Bank of New York and The Northern Trust Company, as
Co-Documentation Agents (the "Amendment and Restatement"). This opinion is
delivered to you pursuant to Section 11(b) of the Amendment and Restatement.
Terms used herein which are defined in the Amended and Restated Credit Agreement
shall have the respective meanings set forth in the Amended and Restated Credit
Agreement, unless otherwise defined herein.
In connection with this opinion, I have examined a copy of the Amended
and Restated Credit Agreement signed by the Company, the Administrative Agent
and the other parties thereto. I have also examined the originals, or duplicates
or certified or conformed copies, of such records, agreements, instruments and
other documents and have made such investigations as I have deemed relevant and
necessary in connection with the opinions expressed herein. As to questions of
fact material to this opinion, I have relied upon certificates of public
officials and officers and representatives of the Company. In addition, I have
examined, and have relied as to matters of fact, upon the representations made
in the Amended and Restated Credit Agreement.
In rendering the opinions set forth below, I have assumed the
genuineness of all signatures (other than those on behalf of the Company), the
legal capacity of natural persons (other than employees of the Company), the
authenticity of all documents submitted to me as originals, the conformity to
original documents of all documents submitted to me as duplicates or certified
or conformed copies, and the authenticity of the originals of such latter
documents. I have assumed without independent investigation that the Amended and
Restated Credit Agreement constitutes a valid and legally binding obligation of
the Administrative Agent and the Lenders.
Based upon and subject to the foregoing, and subject to the
assumptions, qualifications and comments set forth herein, I am of the opinion
that:
1. The Company (a) is a corporation duly organized, validly existing and in good
standing under the laws of Delaware, (b) has all requisite corporate power and
authority to carry on its business as now conducted and (c) except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
2. The Transactions (as hereinafter defined) are within the Company's corporate
powers and have been duly authorized by all necessary corporate action and, if
required, action of the stockholders of the Company. For the purpose of this
opinion, "Transactions" means the execution, delivery and performance by the
Borrowers of the Amended and Restated Credit Agreement, the borrowing of Loans
and the use of the proceeds thereof. The Amended and Restated Credit Agreement
has been duly executed and delivered by the Company.
3. The Amended and Restated Credit Agreement constitutes a valid and legally
binding obligation of the Company enforceable against it in accordance with its
terms.
4. The Transactions (a) do not require any consent or approval of, registration
or filing with, or any other action by, any Governmental Authority, except such
as have been obtained or made and are in full force and effect and except for
such consents, approvals, registrations, filings and other actions the failure
to obtain or make could not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect, (b) will not violate any
applicable Federal or New York law or regulation or the Delaware General
Corporation Law or the charter or by-laws of the Company or any order of any
Governmental Authority applicable to the Company, except for such violations
which, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, (c) will not violate or result in a default
under any indenture, agreement or other instrument binding upon the Company or
any of its Subsidiaries, except for such violations and defaults which,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, and (d) will not result in the creation or imposition
of any Lien on any asset of the Company or any of its Material Subsidiaries.
5. To my knowledge, after due inquiry, there are no actions, suits or
proceedings by or before any arbitrator or Governmental Authority pending
against or threatened against or affecting the Borrower or any of its
Subsidiaries (a) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect (other than
the Disclosed Matters) or (b) that involve the Amended and Restated Credit
Agreement or the Transactions.
6. Neither the Company nor any of its Subsidiaries is a "holding company" as
defined in, or subject to regulations under, the Public Utility Holding Company
Act of 1935.
7. The Company is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
The opinion in paragraph 3 above is subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law),
an implied covenant of good faith and fair dealing and the effects of the
possible judicial application of foreign laws or foreign governmental or
judicial action affecting creditors' rights.
I express no opinion as to: (a) the effect of any provision of the
Amended and Restated Credit Agreement which is intended (i) to establish any
standard as the measure of the performance by any party thereto of such party's
obligations of good faith, diligence, fair dealing, reasonableness or care or
(ii) to permit modification thereof only by means of an agreement in writing
signed by the parties thereto; (b) the effect of any provision of the Amended
and Restated Credit Agreement insofar as it provides that any Person purchasing
a participation from a Lender or other Person may exercise set-off or similar
rights with respect to such participation or that any Lender or other Person may
exercise set-off or similar rights other than in accordance with applicable law;
(c) the effect of any provision of the Amended and Restated Credit Agreement
imposing penalties or forfeitures; (d) the effect of any provision of the
Amended and Restated Credit Agreement relating to indemnification or exculpation
in connection with violations of any securities laws or relating to
indemnification, contribution or exculpation in connection with willful,
reckless or criminal acts or gross negligence of the indemnified or exculpated
Person or the Person receiving contribution; (e) any provision of the Amended
and Restated Credit Agreement which purports to provide for a waiver by the
Company or any immunity, defense or right which may be available to the Company;
and (f) any provision of the Amended and Restated Credit Agreement which
purports to establish an evidentiary standard for determinations by any Person.
I note that (A) a New York statute provides that, with respect to a
foreign currency obligation, a court of the State of New York shall render a
judgment or decree in such foreign currency and such judgment or decree shall be
converted into currency of the United States at the rate of exchange prevailing
on the date of entry of such judgment or decree and (B) with respect to a
foreign currency obligation, a United States Federal court in New York may award
judgment in United States dollars, provided that I express no opinion as to the
rate of exchange such court would apply.
In connection with the provisions of the Amended and Restated Credit
Agreement whereby the Company submits to the jurisdiction of the United States
District Court for the Southern District of New York, I note the limitations of
28 U.S.C. ss.ss.1331 and 1332 on Federal court jurisdiction, and I also note
that such submissions cannot supersede such court's discretion in determining
whether to transfer an action from one Federal court to another under 28 U.S.C.
ss.1404(a). I am a member of the Bar of the State of New York and I do not
express any opinion on any laws other than the law of the State of New York, the
General Corporation Law of the State of Delaware and the Federal laws of the
United States.
This opinion is rendered to you and your lawful successors and assigns
in connection with the above-described transaction. This opinion may not be
relied upon by you for any other purpose, or relied upon by any other person,
firm or corporation without my prior written consent.
Very truly yours,
Xxxxx X. Xxxxxxxx
Schedule 1
LENDERS
XX Xxxxxx Chase Bank
Citibank, N.A.
The Bank of New York
Barclays Bank PLC
The Northern Trust Company
SunTrust Bank
Bank of Tokyo-Mitsubishi Trust Company
