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EXHIBIT 4.1
EXECUTION COPY
U.S. $500,000,000
CREDIT AGREEMENT
Dated as of March 17, 1998
Among
THE WASHINGTON POST COMPANY
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITIBANK, N.A.
as Administrative Agent
and
WACHOVIA BANK, N.A.
as Documentation Agent
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms........................................ 1
SECTION 1.02. Computation of Time Periods.................................. 15
SECTION 1.03. Accounting Terms............................................. 15
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances................................ 16
SECTION 2.02. Making the Revolving Credit Advances......................... 16
SECTION 2.03. The Competitive Bid Advances................................. 18
SECTION 2.04. Fees......................................................... 22
SECTION 2.05. Termination, Reduction or Increase of the Commitments........ 22
SECTION 2.06. Repayment.................................................... 25
SECTION 2.07. Interest on Revolving Credit Advances........................ 25
SECTION 2.08. Interest Rate Determination.................................. 25
SECTION 2.09. Optional Conversion of Revolving Credit Advances............. 27
SECTION 2.10. Optional Prepayments of Revolving Credit Advances............ 27
SECTION 2.11. Increased Costs.............................................. 27
SECTION 2.12. Illegality................................................... 29
SECTION 2.13. Payments and Computations.................................... 30
SECTION 2.14. Taxes........................................................ 31
SECTION 2.15. Sharing of Payments, Etc..................................... 33
SECTION 2.16. Use of Proceeds.............................................. 33
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03........................... 34
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing...... 35
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing....... 35
SECTION 3.04. Determinations Under Section 3.01............................ 36
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower............... 36
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants........................................ 37
SECTION 5.02. Negative Covenants........................................... 40
SECTION 5.03. Financial Covenant........................................... 41
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default............................................ 42
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action..................................... 44
SECTION 7.02. Agent's Reliance, Etc........................................ 44
SECTION 7.03. Citibank and Affiliates...................................... 45
SECTION 7.04. Lender Credit Decision....................................... 45
SECTION 7.05. Indemnification.............................................. 45
SECTION 7.06. Successor Agent.............................................. 46
SECTION 7.07. Co-Agent..................................................... 46
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc.............................................. 46
SECTION 8.02. Notices, Etc................................................. 47
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PAGE
SECTION 8.03. No Waiver; Remedies......................................... 47
SECTION 8.04. Costs and Expenses.......................................... 47
SECTION 8.05. Right of Set-off............................................ 49
SECTION 8.06. Binding Effect.............................................. 49
SECTION 8.07. Assignments and Participations.............................. 49
SECTION 8.08. Confidentiality............................................. 52
SECTION 8.09. Governing Law............................................... 52
SECTION 8.10. Execution in Counterparts................................... 53
SECTION 8.11. Jurisdiction, Etc........................................... 53
SECTION 8.12. Waiver of Jury Trial........................................ 54
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Schedules
Schedule I - List of Applicable Lending Offices
Schedule 5.02(a) - Existing Liens
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Assumption Agreement
Exhibit E - Form of Opinion of Counsel for the Borrower
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CREDIT AGREEMENT
Dated as of March 17, 1998
The Washington Post Company, a Delaware corporation (the
"Borrower"), the banks, financial institutions and other institutional lenders
(the "Initial Lenders") listed on the signature pages hereof, Citibank, N.A.
("Citibank"), as administrative agent (the "Agent") for the Lenders (as
hereinafter defined), and Wachovia Bank, N.A. ("Wachovia"), as documentation
agent (the "Co-Agent") for the Lenders, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Advance" means a Revolving Credit Advance or a Competitive
Bid Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or executive officer of such
Person. For purposes of this definition, the term "control" (including
the terms "controlling", "controlled by" and "under common control
with") of a Person means the possession, direct or indirect, of the
power to vote 10% or more of the Voting Stock of such Person or to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Stock, by contract or
otherwise.
"Agent's Account" means the account of the Agent maintained by
the Agent at Citibank with its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Account No. 3685-2248, Attention: Xxxxx XxxXxxxxx.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance and, in the case of a Competitive Bid
Advance, the office of such Lender notified by such Lender to the Agent
as its Applicable Lending Office with respect to such Competitive Bid
Advance.
"Applicable Margin" means, as of any date, a percentage per
annum determined by reference to the Performance Level in effect on
such date as set forth below:
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Performance Applicable Margin Applicable Margin for
Level for Eurodollar Rate
Base Rate Advances Advances
============== ================== =====================
I 0% 0.100%
II 0% 0.095%
III 0% 0.150%
IV 0% 0.250%
V 0% 0.300%
============== ================== =====================
"Applicable Percentage" means, as of any date, a percentage
per annum determined by reference to the Performance Level in effect on
such date as set forth below:
Performance Level Applicable
Percentage
================= ==========
I 0.050%
II 0.055%
III 0.075%
IV 0.125%
V 0.175%
================== ==========
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"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, accepted and
approved by the Agent and approved by the Borrower, in substantially
the form of Exhibit C hereto.
"Assuming Lender" means an Eligible Assignee not previously a
Lender that becomes a Lender hereunder pursuant to Section 2.05(b).
"Assumption Agreement" means an agreement in substantially the
form of Exhibit D hereto by which an Eligible Assignee agrees to become
a Lender hereunder pursuant to Section 2.05(b), in each case agreeing
to be bound by all obligations of a Lender hereunder.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate; and
(b) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing or a
Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"Commercial Paper Rating" means, as of any date, the lowest
rating that has been most recently announced by either S&P or Xxxxx'x,
as the case may be, for short term public unsecured senior debt issued
by the Borrower. For purposes of the foregoing, (a) if any rating
established by S&P or Xxxxx'x shall be changed, such change shall be
effective as of the date on which such change is first announced
publicly by the rating agency making such change; and (b) if S&P or
Xxxxx'x shall change the basis on which ratings are established, each
reference to the Commercial Paper Rating announced by S&P or Xxxxx'x,
as the case may be, shall refer to the then equivalent rating by S&P
or Xxxxx'x, as the case may be.
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"Commitment" means, with respect to any Lender at any time (i)
the amount set forth opposite such Lender's name on the signature pages
hereof, (ii) if such Lender has become a Lender hereunder pursuant to
an Assumption Agreement, the amount set forth as its Commitment in such
Assumption Agreement or (iii) if such Lender has entered into one or
more Assignments and Acceptances, set forth for such Lender in the
Register maintained by the Agent pursuant to Section 8.07(d), as such
amount may be increased, terminated or reduced, as the case may be, at
or prior to such time pursuant to Section 2.05.
"Commitment Date" has the meaning specified in Section
2.05(b)(i).
"Commitment Increase" has the meaning specified in Section
2.05(b)(i).
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.
"Competitive Bid Note" means a promissory note of the Borrower
(bearing an original or facsimile signature) payable to the order of
any Lender, in substantially the form of Exhibit A-2 hereto, evidencing
the indebtedness of the Borrower to such Lender resulting from a
Competitive Bid Advance made by such Lender.
"Confidential Information" means information that the Borrower
furnishes to the Agent, Co-Agent or any Lender in a writing designated
as confidential, but does not include any such information that is or
becomes generally available to the public or that is or becomes
available to the Agent or such Lender from a source other than the
Borrower that is not, to the best of the Agent's, the Co-Agent's or
such Lender's knowledge, acting in violation of a confidentiality
agreement with or for the benefit of the Borrower.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Continuing Directors" means individuals who at the date
hereof are directors of the Borrower and any other director (i) whose
election or nomination was approved by a majority of the then
Continuing Directors or (b) who was nominated by management at a time
when Continuing Directors constituted a majority of the board of
directors of the Borrower.
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"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables not overdue by more than 120 days incurred
in the ordinary course of such Person's business), (c) all obligations
of such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all obligations of such Person created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
obligations of such Person as lessee under leases that have been or
should be, in accordance with GAAP, recorded as capital leases, (f) all
obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (g) all
Debt of others referred to in clauses (a) through (f) above or clause
(h) below guaranteed directly or indirectly in any manner by such
Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (1) to pay or purchase such Debt or to advance or
supply funds for the payment or purchase of such Debt, (2) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make
payment of such Debt or to assure the holder of such Debt against loss,
(3) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective
of whether such property is received or such services are rendered) or
(4) otherwise to assure a creditor against loss, and (h) all Debt
referred to in clauses (a) through (g) above secured by (or for which
the holder of such Debt has an existing right, contingent or otherwise,
to be secured by) any Lien on property (including, without limitation,
accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Debt.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Domestic Lending Office" means, with respect to any Initial
Lender, the office of such Lender specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto and, with respect to any
other Lender, the office of such Lender specified as its "Domestic
Lending Office" in the Assumption Agreement or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Agent.
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"Downgrade" means, with respect to any Lender, the lowest
rating that has been most recently announced for any class of
non-credit enhanced long-term senior unsecured debt issued by such
Lender is lower than BBB- by S&P or Baa3 by Xxxxx'x.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the laws of the United
States, or any State thereof, and having total assets in excess of
$5,000,000,000; (iv) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof,
and having total assets in excess of $5,000,000,000; (v) a commercial
bank organized under the laws of any other country that is a member of
the Organization for Economic Cooperation and Development or has
concluded special lending arrangements with the International Monetary
Fund associated with its General Arrangements to Borrow or of the
Cayman Islands, or a political subdivision of any such country, and
having total assets in excess of $5,000,000,000 so long as such bank is
acting through a branch or agency located in the United States or in
the country in which it is organized or another country that is
described in this clause (v); (vi) the central bank of any country that
is a member of the Organization for Economic Cooperation and
Development; and (vii) any other Person approved by the Agent and the
Borrower, such approval not to be unreasonably withheld or delayed;
provided, however, that neither the Borrower nor an Affiliate of the
Borrower shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, consent order or consent agreement
relating in any way to any Environmental Law, Environmental Permit or
Hazardous Materials or arising from alleged injury or threat of injury
to health, safety or the environment, including, without limitation,
(a) by any governmental or regulatory authority for enforcement,
cleanup, removal, response, remedial or other actions or damages and
(b) by any governmental or regulatory authority or any third party for
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment or
decree relating to pollution or protection of the environment, health,
safety or natural resources, including, without limitation, those
relating to the use, handling, transportation, treatment, storage,
disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
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"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Borrower's controlled group, or under
common control with the Borrower, within the meaning of Section 414(b)
or (c) of the Internal Revenue Code or, solely for purposes of Sections
302 and 303 of ERISA and Section 412 of the Internal Revenue Code, is
treated as a single employer under Section 414(b), (c), (m) and (o) of
the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph
(9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30
days; (b) the application for a minimum funding waiver with respect to
a Plan; (c) the provision by the administrator of any Plan of a notice
of intent to terminate such Plan pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (d) the cessation of
operations at a facility of the Borrower or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (e) the withdrawal
by the Borrower or any ERISA Affiliate from a Multiple Employer Plan
during a plan year for which it was a substantial employer, as defined
in Section 4001(a)(2) of ERISA; (f) the conditions for the imposition
of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section
307 of ERISA; or (h) the institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence
of any event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurocurrency Reserve Requirements" means the aggregate of the
maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by the
Board of Governors of the Federal Reserve System and any other banking
authority to which any Lender is subject and applicable to Eurocurrency
Liabilities, or any similar category of assets or liabilities relating
to
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eurocurrency fundings. Eurocurrency Reserve Requirements shall be
adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Eurodollar Lending Office" means, with respect to any Initial
Lender, the office of such Lender specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto and, with respect to any
other Lender, the office of such Lender specified as its "Eurodollar
Lending Office" in the Assumption Agreement or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the average (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum, if such
average is not such a multiple) of the rate per annum at which deposits
in U.S. dollars are offered to the principal office of each of the
Reference Banks in London, England by prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period in an amount substantially equal
to such Reference Bank's Eurodollar Rate Advance comprising part of
such Revolving Credit Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period. The Eurodollar
Rate for any Interest Period for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to
and received by the Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject, however, to the
provisions of Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit Advance
that bears interest as provided in Section 2.07(a)(ii).
"Events of Default" has the meaning specified in Section 6.01.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it with the consent of the Borrower.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i).
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"GAAP" has the meaning specified in Section 1.03.
"Xxxxxx Interests" shall mean Xxxxxxxxx Xxxxxx and her
siblings, their descendants and any relative by marriage of the
foregoing, and any trust for the benefit of any of the foregoing
whether as an income or residual beneficiary.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic under any Environmental
Law and any pollutant or contaminant regulated under the Clean Water
Act, 33 U.S.C. Sections 1251 et seq., or the Clean Air Act, 42 U.S.C.
Sections 7401 et seq.
"Increase Date" has the meaning specified in Section
2.05(b)(i).
"Increasing Lender" has the meaning specified in Section
2.05(b)(i).
"Information Memorandum" means the information memorandum
dated February 25, 1998 used by the Agent in connection with the
syndication of the Commitments.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing, the
period commencing on the date of such Eurodollar Rate Advance or LIBO
Rate Advance or the date of the Conversion of any Base Rate Advance
into such Eurodollar Rate Advance and ending on the last day of the
period selected by the Borrower pursuant to the provisions below and,
thereafter, with respect to Eurodollar Rate Advances, each subsequent
period commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months or, if available
to all the Lenders, nine or twelve months, as the Borrower may, upon
notice received by the Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the first day of such Interest
Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period
that ends after the Termination Date in effect at the time of
such selection;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of
the same Competitive Bid Borrowing shall be of the same
duration;
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(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur
on the next succeeding Business Day, provided, however, that,
if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the
last day of such Interest Period shall occur on the next
preceding Business Day; and
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month
that succeeds such initial calendar month by the number of
months equal to the number of months in such Interest Period,
such Interest Period shall end on the last Business Day of
such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Lenders" means the Initial Lenders, each Assuming Lender that
shall become a party hereto pursuant to Section 2.05(b) and each Person
that shall become a party hereto pursuant to Section 8.07.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not
such a multiple) of the rate per annum at which deposits in U.S.
dollars are offered to the principal office of each of the Reference
Banks in London, England by prime banks in the London interbank market
at 11:00 A.M. (London time) two Business Days before the first day of
such Interest Period in an amount substantially equal to the amount
that would be the Reference Banks' respective ratable shares of such
Borrowing if such Borrowing were to be a Revolving Credit Borrowing to
be outstanding during such Interest Period and for a period equal to
such Interest Period. The LIBO Rate for any Interest Period for each
LIBO Rate Advance comprising part of the same Competitive Bid Borrowing
shall be determined by the Agent on the basis of applicable rates
furnished to and received by the Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
"LIBO Rate Advances" has the meaning specified in Section
2.03(a)(i).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien
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or retained security title of a conditional vendor and any easement,
right of way or other encumbrance on title to real property.
"Margin Stock" has the meaning assigned to such term under
Regulation U of the Board of Governors of the Federal Reserve System of
the United States as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
"Material Adverse Change" means any material adverse change in
the business, financial condition or results of operations of the
Borrower and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, financial condition or results of operations of the
Borrower and its Subsidiaries taken as a whole, (b) the rights and
remedies of the Agent or any Lender under this Agreement or any Note or
(c) the ability of the Borrower to perform its obligations under this
Agreement or any Note.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and at least one
Person other than the Borrower and the ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Non-Recourse Debt" shall mean Debt of the Borrower or its
Subsidiaries incurred (a) as to which neither the Borrower nor any of
its Subsidiaries (i) provides credit support (including any
undertaking, agreement or instrument which would constitute Debt) or
has given or made other written assurances regarding repayment or the
maintenance of capital or liquidity except such assurances as may be
approved by the Required Lenders (such approval not to be unreasonably
withheld or delayed), (ii) is directly or indirectly liable or (iii)
constitutes the lender and (b) the obligees of which will have recourse
solely to certain identified assets (the loss of which would not
reasonably be expected to have a Material Adverse Effect) for repayment
of the principal of and interest on such Debt and
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any fees, indemnities, expenses, reimbursements or other amounts of
whatever nature accrued or payable in connection with such Debt.
"Note" means a Revolving Credit Note or a Competitive Bid
Note.
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Performance Level" means, as of any date of the
determination, the level set forth below as then in effect, as
determined in accordance with the following provisions of this
definition:
Level I:Public Debt Rating of not lower than AA+ by S&P or not
lower than Aa1 by Moody's.
Level II:Public Debt Rating of lower than Level I but not
lower than AA- by S&P or Aa3 by Moody's; or, if no Public Debt
Rating is available from S&P or Moody's, Commercial Paper
Rating of not lower than A-1+ by S&P and P-1 by Moody's.
Level III:
Public Debt Rating of lower than Level II but not lower than
A- by S&P or A3 by Moody's; or, if no Public Debt Rating is
available from S&P or Moody's, Commercial Paper Rating of not
lower than A-2 from S&P and P-2 from Moody's.
Level IV:
Public Debt Rating of lower than Level III but not lower than
BBB by S&P or Baa2 by Moody's or, if no Public Debt Rating is
available from S&P or Moody's, Commercial Paper Rating of not
lower than A-3 from S&P and P-3 by Moody's.
Level V:
Public Debt Rating or Commercial Paper Rating lower than
Level IV or no Public Debt Rating or Commercial Paper Rating.
For purposes of the foregoing, (a) if only one of S&P and
Moody's shall have in effect a Public Debt Rating, the
Performance Level shall be determined by reference to the
available rating, (b) if the Public Debt Ratings established
by S&P
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and Moody's shall fall within different Performance
Levels, the Performance Level shall be based upon the higher
rating, provided that if the lower of such ratings is more
than one level below the higher of such ratings, the
Performance Level shall be based on the level immediately
above such lower rating, (c) if only one of S&P and Moody's
shall have in effect a Commercial Paper Rating, the
Performance Level shall be determined by reference to the
available rating and (d) if the Commercial Paper Ratings
established by S&P and Moody's shall fall within different
Performance Levels, the Performance Level shall be based upon
the lower rating.
"Permitted Liens" means any of the following:
(a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under
Section 5.01(b) hereof;
(b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and
other similar Liens arising in the ordinary course of
business securing obligations (other than Debt) that (i) are
not overdue for a period of more than 120 days or (ii) are
being contested in good faith and by proper proceedings and
as to which appropriate reserves are being maintained in
accordance with GAAP;
(c) Pledges or deposits to secure obligations under
workers' compensation laws or similar legislation or to
secure public or statutory obligations;
(d) Liens securing the performance of or payment in
respect of, bids, tenders, government contracts (other than
for the repayment of Debt), surety and appeal bonds and other
obligations of a similar nature incurred in the ordinary
course of business; and
(e) Easements, rights of way and other encumbrances
on title to real property that do not materially adversely
affect the use of such property for its present purposes.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
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"Plan" means a Single Employer Plan or a Multiple Employer
Plan subject to the provisions of Title IV of ERISA or Section 412 of
the Internal Revenue Code or Section 302 of ERISA.
"Pro Rata Share" of any amount means, with respect to any
Lender at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender's Commitment at such
time and the denominator of which is the aggregate of the Commitments
of the Lenders at such time.
"Public Debt Rating" means, as of any date, the lowest rating
that has been most recently announced by either S&P or Moody's, as the
case may be, for any class of non-credit enhanced long-term senior
unsecured debt issued by the Borrower. For purposes of the foregoing,
(a) if any rating established by S&P or Moody's shall be changed, such
change shall be effective as of the date on which such change is first
announced publicly by the rating agency making such change; and (b) if
S&P or Moody's shall change the basis on which ratings are
established, each reference to the Public Debt Rating announced by S&P
or Moody's, as the case may be, shall refer to the then equivalent
rating by S&P or Moody's, as the case may be.
"Reference Banks" means Citibank, Wachovia and The Bank of New
York.
"Register" has the meaning specified in Section 8.07(d).
"Required Lenders" means at any time Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount of
the Revolving Credit Advances owing to Lenders, or, if no such
principal amount is then outstanding, Lenders having at least a
majority in interest of the Commitments.
"Revolving Credit Advance" means an advance by a Lender to the
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurodollar Rate Advance (each of which shall be a
"Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of the
Borrower (bearing an original or facsimile signature) payable to the
order of any Lender, in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Revolving Credit Advances made by such Lender.
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"S&P" means Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc.
"Shareholders' Equity" means "shareholders' equity" as such
term is construed in accordance with GAAP and as reported in the
Borrower's reports and registration statements filed with the
Securities and Exchange Commission or any national securities exchange.
"Significant Subsidiary" shall mean any Subsidiary that would
be a "significant subsidiary" within the meaning of Rule 1-02 of the
SEC's Regulation S-X.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and no Person other
than the Borrower and the ERISA Affiliates or (b) was so maintained
and in respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Termination Date" means the earlier of March 17, 2003 and the
date of termination in whole of the Commitments pursuant to Section
2.05 or 6.01.
"Unused Commitment" means, with respect to any Lender at any
time, (a) such Lender's Commitment at such time minus (b) the sum of
(i) the aggregate principal amount of all Revolving Credit Advances
made by such Lender and outstanding at such time, plus (ii) such
Lender's Pro Rata Share of the aggregate principal amount of the
Competitive Bid Advances then outstanding.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of not less than a majority of the directors (or persons
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performing similar functions) of such Person, even if the right so to
vote has been suspended by the happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All terms of an accounting or
financial nature shall be construed in accordance with generally accepted
accounting principles ("GAAP"), as in effect from time to time; provided,
however, that if the Borrower notifies the Agent that the Borrower wishes to
amend any covenant in Article V or any related definition to eliminate the
effect of any change in GAAP occurring after the date of this Agreement on the
operation of such covenant, or if the Agent notifies the Borrower that the
Required Lenders wish to amend Article V or any related definition for such
purpose, then the Borrower's compliance with such covenant shall be determined
on the basis of GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Borrower and the Required Lenders.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
Revolving Credit Advances to the Borrower from time to time on any Business Day
during the period from the Effective Date until the Termination Date in an
amount for each such Advance not to exceed such Lender's Unused Commitment. Each
Revolving Credit Borrowing shall be in an aggregate amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof (or, if less, an aggregate
amount equal to the amount by which the aggregate amount of a proposed
Competitive Bid Borrowing requested by the Borrower exceeds the aggregate amount
of Competitive Bid Advances offered to be made by the Lenders and accepted by
the Borrower in respect of such Competitive Bid Borrowing, if such Competitive
Bid Borrowing is made on the same date as such Revolving Credit Borrowing) and
shall consist of Revolving Credit Advances of the same Type made on the same day
by the Lenders ratably according to their respective Commitments. Within the
limits of each Lender's Unused Commitment in effect from time to time, the
Borrower may borrow under this Section 2.01, prepay pursuant to Section 2.10 and
reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Revolving Credit Borrowing shall be made on notice, given not later than 11:00
A.M. (New York City time) on the third Business Day prior to the date of the
proposed Revolving Credit Borrowing in the case
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of a Revolving Credit Borrowing consisting of Eurodollar Rate Advances, or the
date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Base Rate Advances, by the Borrower to the
Agent, which shall give to each Lender prompt notice thereof by telecopier or
telex. Each such notice of a Revolving Credit Borrowing (a "Notice of Revolving
Credit Borrowing") shall be by telephone, confirmed at once in writing, or
telecopier or telex in substantially the form of Exhibit B-1 hereto, specifying
therein the requested (i) date of such Revolving Credit Borrowing, (ii) Type of
Advances comprising such Revolving Credit Borrowing, (iii) aggregate amount of
such Revolving Credit Borrowing, and (iv) in the case of a Revolving Credit
Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for
each such Revolving Credit Advance. Each Lender shall, before 1:00 P.M. (New
York City time) on the date of such Revolving Credit Borrowing, make available
for the account of its Applicable Lending Office to the Agent at the Agent's
Account, in same day funds, such Lender's ratable portion of such Revolving
Credit Borrowing. After the Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article III, the Agent will make such
funds available to the Borrower at the Agent's address referred to in Section
8.02.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Revolving Credit Borrowing if the aggregate amount of such Revolving Credit
Borrowing is less than $10,000,000 or if the obligation of the Lenders to make
Eurodollar Rate Advances shall then be suspended pursuant to Section 2.08 or
2.12 and (ii) the Eurodollar Rate Advances may not be outstanding as part of
more than fifteen separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on the Borrower. In the case of any Revolving Credit
Borrowing that the related Notice of Revolving Credit Borrowing specifies is to
be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each
Lender against any loss, cost or expense incurred by such Lender as a result of
any failure to fulfill on or before the date specified in such Notice of
Revolving Credit Borrowing for such Revolving Credit Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Revolving Credit Advance to be made by such Lender as part of
such Revolving Credit Borrowing when such Revolving Credit Advance, as a result
of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender
prior to the date of any Revolving Credit Borrowing that such Lender will not
make available to the Agent such Lender's ratable portion of such Revolving
Credit Borrowing, the Agent may assume that such Lender has made such portion
available to the Agent on the date of such Revolving Credit Borrowing in
accordance with subsection (a) of this Section 2.02 and the Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If
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and to the extent that such Lender shall not have so made such ratable portion
available to the Agent, such Lender and the Borrower severally agree to repay
to the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Agent, at (i) in the
case of the Borrower, the interest rate applicable at the time to the Advances
comprising such Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the Agent such corresponding amount,
such amount so repaid shall constitute such Lender's Revolving Credit Advance
as part of such Revolving Credit Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit
Advance to be made by it as part of any Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Revolving Credit Advance
on the date of such Revolving Credit Borrowing but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that the Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below; provided that the amount of each Competitive Bid
Borrowing shall not exceed the aggregate amount of the Unused Commitments of the
Lenders on such Business Day.
(i)The Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Agent, by telecopier or telex, a
notice of a Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in substantially the form of Exhibit B-2 hereto,
specifying therein the requested (v) date of such proposed Competitive
Bid Borrowing, (w) aggregate amount of such proposed Competitive Bid
Borrowing, (x) in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, Interest Period, or in the case of a Competitive
Bid Borrowing consisting of Fixed Rate Advances, maturity date for
repayment of each Fixed Rate Advance to be made as part of such
Competitive Bid Borrowing (which maturity date may not be earlier than
the date occurring 30 days after the date of such Competitive Bid
Borrowing or later than the earlier of (I) 360 days after the date of
such Competitive Bid Borrowing and (II) the Termination Date), (y)
interest payment date or dates relating thereto, and (z) other terms
(if any) to be applicable to such Competitive Bid Borrowing, not later
than 10:00 A.M. (New York City time) (A) at least one Business Day
prior to the date of the proposed Competitive Bid Borrowing, if the
Borrower shall specify in the Notice of Competitive Bid Borrowing that
the rates of interest to be offered by the Lenders shall be fixed rates
per annum (the Advances comprising any such Competitive Bid Borrowing
being referred to herein as "Fixed Rate Advances") and (B) at least
four Business Days prior to the date of the
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proposed Competitive Bid Borrowing, if the Borrower shall instead
specify in the Notice of Competitive Bid Borrowing that the rates of
interest be offered by the Lenders are to be based on the LIBO Rate
(the Advances comprising such Competitive Bid Borrowing being referred
to herein as "LIBO Rate Advances"). Each Notice of Competitive Bid
Borrowing shall be irrevocable and binding on the Borrower. The Agent
shall in turn promptly notify each Lender of each request for a
Competitive Bid Borrowing received by it from the Borrower by sending
such Lender a copy of the related Notice of Competitive Bid Borrowing.
(ii)Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid Advances
to the Borrower as part of such proposed Competitive Bid Borrowing at a
rate or rates of interest specified by such Lender in its sole
discretion, by notifying the Agent (which shall give prompt notice
thereof to the Borrower), before 9:30 A.M. (New York City time) on the
date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances and before
10:00 A.M. (New York City time) three Business Days before the date of
such proposed Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of LIBO Rate Advances, of the minimum amount
and maximum amount of each Competitive Bid Advance which such Lender
would be willing to make as part of such proposed Competitive Bid
Borrowing (which amounts may, subject to the proviso to the first
sentence of this Section 2.03(a), exceed such Lender's Commitment), the
rate or rates of interest therefor and such Lender's Applicable Lending
Office with respect to such Competitive Bid Advance; provided that if
the Agent in its capacity as a Lender shall, in its sole discretion,
elect to make any such offer, it shall notify the Borrower of such
offer at least 30 minutes before the time and on the date on which
notice of such election is to be given to the Agent by the other
Lenders. If any Lender shall elect not to make such an offer, such
Lender shall so notify the Agent, before 10:00 A.M. (New York City
time) on the date on which notice of such election is to be given to
the Agent by the other Lenders, and such Lender shall not be obligated
to, and shall not, make any Competitive Bid Advance as part of such
Competitive Bid Borrowing; provided that the failure by any Lender to
give such notice shall not cause such Lender to be obligated to make
any Competitive Bid Advance as part of such proposed Competitive Bid
Borrowing.
(iii)The Borrower shall, in turn, before 10:30 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances and before 11:00 A.M. (New York City time) three Business Days
before the date of such proposed Competitive Bid Borrowing, in the case
of a Competitive Bid Borrowing consisting of LIBO Rate Advances,
either:
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(x) cancel such Competitive Bid Borrowing by giving
the Agent notice to that effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in its
sole discretion, by giving notice to the Agent of the
amount of each Competitive Bid Advance (which amount shall be
equal to or greater than the minimum amount, and equal to or
less than the maximum amount, notified to the Borrower by the
Agent on behalf of such Lender for such Competitive Bid
Advance pursuant to paragraph (ii) above) to be made by each
Lender as part of such Competitive Bid Borrowing, and reject
any remaining offers made by Lenders pursuant to paragraph
(ii) above by giving the Agent notice to that effect. The
Borrower shall accept the offers made by any Lender or Lenders
to make Competitive Bid Advances in order of the lowest to the
highest rates of interest offered by such Lenders. If two or
more Lenders have offered the same interest rate, the amount
to be borrowed at such interest rate will be allocated among
such Lenders in proportion to the amount that each such Lender
offered at such interest rate.
(iv)If the Borrower notifies the Agent that such Competitive
Bid Borrowing is cancelled pursuant to paragraph (iii)(x) above, the
Agent shall give prompt notice thereof to the Lenders and such
Competitive Bid Borrowing shall not be made.
(v)If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y) above, the Agent
shall in turn promptly notify (A) each Lender that has made an offer as
described in paragraph (ii) above, of the date and aggregate amount of
such Competitive Bid Borrowing and whether or not any offer or offers
made by such Lender pursuant to paragraph (ii) above have been accepted
by the Borrower, (B) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, of the amount of
each Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing, and (C) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, upon
receipt, that the Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each Lender
that is to make a Competitive Bid Advance as part of such Competitive
Bid Borrowing shall, before 12:00 noon (New York City time) on the date
of such Competitive Bid Borrowing specified in the notice received from
the Agent pursuant to clause (A) of the preceding sentence or any later
time when such Lender shall have received notice from the Agent
pursuant to clause (C) of the preceding sentence, make available for
the account of its Applicable Lending Office to the Agent at the
Agent's Account, in same day funds, such Lender's portion of such
Competitive Bid Borrowing. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the Agent of
such funds, the Agent will make such funds available to the Borrower at
the
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Agent's address referred to in Section 8.02. Promptly after each
Competitive Bid Borrowing the Agent will notify each Lender of the
amount of the Competitive Bid Borrowing.
(vi)If the Borrower notifies the Agent that it accepts one or
more of the offers made by any Lender or Lenders pursuant to paragraph
(iii)(y) above, such notice of acceptance shall be irrevocable and
binding on the Borrower. The Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result
of any failure to fulfill on or before the date specified in the
related Notice of Competitive Bid Borrowing for such Competitive Bid
Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund
the Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing when such Competitive Bid Advance, as a
result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and, following the making of each Competitive Bid Borrowing, the Borrower shall
be in compliance with the limitation set forth in the proviso to the first
sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this Section 2.03,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03, provided that a Competitive Bid Borrowing shall not be made within
one Business Day of the date of any other Competitive Bid Borrowing.
(d) The Borrower shall repay to the Agent for the account of
each Lender that has made a Competitive Bid Advance, on the maturity date of
each Competitive Bid Advance (such maturity date being that specified by the
Borrower for repayment of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and
provided in the Competitive Bid Note evidencing such Competitive Bid Advance),
the then unpaid principal amount of such Competitive Bid Advance. The Borrower
shall have no right to prepay any principal amount of any Competitive Bid
Advance unless, and then only on the terms, specified by the Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above and set forth in the Competitive
Bid Note evidencing such Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid principal
amount of each Competitive Bid Advance from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such
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Competitive Bid Advance specified by the Lender making such Competitive Bid
Advance in its notice with respect thereto delivered pursuant to subsection
(a)(ii) above, payable on the interest payment date or dates specified by the
Borrower for such Competitive Bid Advance in the related Notice of Competitive
Bid Borrowing delivered pursuant to subsection (a)(i) above, as provided in the
Competitive Bid Note evidencing such Competitive Bid Advance. The Borrower
shall pay interest on the amount of overdue principal and, to the fullest
extent permitted by law, interest in respect of each Competitive Bid Advance
owing to a Lender, payable in arrears on the date or dates interest is payable
thereon, at a rate per annum equal at all times to 1% per annum above the rate
per annum required to be paid on such Competitive Bid Advance under the terms
of the Competitive Bid Note evidencing such Competitive Bid Advance unless
otherwise agreed in such Competitive Bid Note.
(f) The indebtedness of the Borrower resulting from each
Competitive Bid Advance made to the Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note of the Borrower
payable to the order of the Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to
pay to the Agent for the account of each Lender a facility fee on the aggregate
amount of such Lender's Commitment in effect from time to time from the
Effective Date in the case of each Initial Lender and from the later of the
Effective Date and the effective date specified in the Assumption Agreement or
in the Assignment and Acceptance, as the case may be, pursuant to which it
became a Lender in the case of each other Lender until the Termination Date at a
rate per annum equal to the Applicable Percentage in effect from time to time,
payable in arrears quarterly on the last day of each March, June, September and
December, commencing March 31, 1998, and on the Termination Date.
(b) Agent's Fees. The Borrower shall pay to the Agent for its
own account such fees as may from time to time be agreed between the Borrower
and the Agent.
SECTION 2.05. Termination, Reduction or Increase of the
Commitments. (a) Termination or Reduction. The Borrower shall have the right,
upon at least three Business Days' notice to the Agent, to terminate in whole or
reduce ratably in part the respective Unused Commitments of the Lenders,
provided that each partial reduction shall be in the aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof. The
aggregate amount of the Commitments once reduced as provided in this Section
2.05(a), may not be reinstated, except as provided in Section 2.05(b) below.
(b) Increase in Aggregate of the Commitments. (i) The Borrower
may at any time, by notice to the Agent, propose that the aggregate amount of
the Commitments be increased (such aggregate amount being, a "Commitment
Increase"), effective as at a date prior to the
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Termination Date (an "Increase Date") as to which agreement is to be reached by
an earlier date specified in such notice (a "Commitment Date"); provided,
however, that (A) the Borrower may not propose more than two Commitment
Increases in any calendar year, (B) the minimum proposed Commitment Increase
per notice shall be $25,000,000, (C) in no event shall the aggregate amount of
the Commitments at any time exceed $750,000,000, (D) the applicable Performance
Level on such Increase Date shall be Level I, Level II or Level III and (E) no
Default shall have occurred and be continuing on such Increase Date. The Agent
shall notify the Lenders thereof promptly upon its receipt of any such notice.
The Agent agrees that it will cooperate with the Borrower in discussions with
the Lenders and other Eligible Assignees with a view to arranging the proposed
Commitment Increase through the increase of the Commitments of one or more of
the Lenders (each such Lender that is willing to increase its Commitment
hereunder being an "Increasing Lender") and the addition of one or more other
Eligible Assignees as Assuming Lenders and as parties to this Agreement;
provided, however, that it shall be in each Lender's sole discretion whether to
increase its Commitment hereunder in connection with the proposed Commitment
Increase; and provided further that the minimum Commitment of each such
Assuming Lender that becomes a party to this Agreement pursuant to this Section
2.05(b), shall be at least equal to $15,000,000. If any of the Lenders agree to
increase their respective Commitments by an aggregate amount in excess of the
proposed Commitment Increase, the proposed Commitment Increase shall be
allocated among such Lenders in proportion to their respective Commitments
immediately prior to the Increase Date. If agreement is reached on or prior to
the applicable Commitment Date with any Increasing Lenders and Assuming Lenders
as to a Commitment Increase (which may be less than but not greater than
specified in the applicable notice from the Borrower), such agreement to be
evidenced by a notice in reasonable detail from the Borrower to the Agent on or
prior to the applicable Commitment Date, such Assuming Lenders, if any, shall
become Lenders hereunder as of the applicable Increase Date and the Commitments
of such Increasing Lenders and such Assuming Lenders shall become or be, as the
case may be, as of the Increase Date, the amounts specified in such notice;
provided that:
(x)the Agent shall have received (with copies for each Lender,
including each such Assuming Lender) by no later than 10:00 A.M. (New
York City time) on the applicable Increase Date (1) certified copies of
resolutions of the Board of Directors of the Borrower approving the
Commitment Increase and (2) an opinion of counsel for the Borrower
(which may be in-house counsel), in substantially the form of Exhibit E
hereto;
(y)each such Assuming Lender shall have delivered to the
Agent, by no later than 10:00 A.M. (New York City time) on such
Increase Date, an appropriate Assumption Agreement in substantially
the form of Exhibit D hereto, duly executed by such Assuming Lender
and the Borrower; and
(z)each such Increasing Lender shall have delivered to the
Agent by, no later than 10:00 A.M. (New York City time) on such
Increase Date, (A) its existing Revolving
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Credit Note and (B) confirmation in writing satisfactory to the Agent
as to its increased Commitment.
(ii) In the event that the Agent shall have received notice
from the Borrower as to its agreement to a Commitment Increase on or prior to
the applicable Commitment Date and each of the actions provided for in clauses
(x) through (z) above shall have occurred prior to 10:00 A.M. (New York City
time) on the applicable Increase Date to the satisfaction of the Agent, the
Agent shall notify the Lenders (including any Assuming Lenders) and the Borrower
of the occurrence of such Commitment Increase by telephone, confirmed at once in
writing, telecopier, telex or cable and in any event no later than 1:00 P.M.
(New York City time) on such Increase Date and shall record in the Register the
relevant information with respect to each Increasing Lender and Assuming Lender.
Each Increasing Lender and each Assuming Lender shall, before 2:00 P.M. (New
York City time) on the applicable Increase Date, make available for the account
of its Applicable Lending Office to the Agent at the Agent's Account, in same
day funds, in the case of such Assuming Lender, an amount equal to such Assuming
Lender's ratable portion of the Revolving Credit Borrowings then outstanding
(calculated based on its Commitment as a percentage of the aggregate Commitments
outstanding after giving effect to the relevant Commitment Increase) and, in the
case of such Increasing Lender, an amount equal to the excess of (i) such
Increasing Lender's ratable portion of the Revolving Credit Borrowings then
outstanding (calculated based on its Commitment as a percentage of the aggregate
Commitments outstanding after giving effect to the relevant Commitment Increase)
over (ii) such Increasing Lender's Pro Rata Share of the Revolving Credit
Borrowings then outstanding (calculated based on its Commitment (without giving
effect to the relevant Commitment Increase) as a percentage of the aggregate
Commitments (without giving effect to the relevant Commitment Increase). After
the Agent's receipt of such funds from each such Increasing Lender and each such
Assuming Lender, the Agent will promptly thereafter cause to be distributed like
funds to the other Lenders for the account of their respective Applicable
Lending Offices in an amount to each other Lender such that the aggregate amount
of the outstanding Revolving Credit Advances owing to each Lender after giving
effect to such distribution equals such Lender's Pro Rata Share of the Revolving
Credit Borrowings then outstanding (calculated based on its Commitment as a
percentage of the aggregate Commitments outstanding after giving effect to the
relevant Commitment Increase). Within five Business Days after the Borrower
receives notice from the Agent, the Borrower, at its own expense, shall execute
and deliver to the Agent, Revolving Credit Notes payable to the order of each
Assuming Lender, if any, and, each Increasing Lender, dated as of the applicable
Increase Date, in a principal amount equal to such Lender's Commitment after
giving effect to the relevant Commitment Increase, and substantially in the form
of Exhibit A-1 hereto. The Agent, upon receipt of such Revolving Credit Notes,
shall promptly deliver such Revolving Credit Notes to the respective Assuming
Lenders and Increasing Lenders.
(iii) In the event that the Agent shall not have received
notice from the Borrower as to such agreement on or prior to the applicable
Commitment Date or the Borrower shall, by
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notice to the Agent prior to the applicable Increase Date, withdraw its
proposal for a Commitment Increase or any of the actions provided for above in
clauses (i)(x) through (i)(z) shall not have occurred by 10:00 A.M. (New York
City time) on the such Increase Date, such proposal by the Borrower shall be
deemed not to have been made. In such event, any actions theretofore taken
under clauses (i)(x) through (i)(z) above shall be deemed to be of no effect
and all the rights and obligations of the parties shall continue as if no such
proposal had been made.
SECTION 2.06. Repayment. The Borrower shall repay to the Agent
for the ratable account of the Lenders on the Termination Date the aggregate
principal amount of the Revolving Credit Advances then outstanding.
SECTION 2.07. Interest on Revolving Credit Advances. (a)
Scheduled Interest. The Borrower shall pay interest on the unpaid principal
amount of each Revolving Credit Advance owing to each Lender from the date of
such Revolving Credit Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i)Base Rate Advances. During such periods as such Revolving
Credit Advance is a Base Rate Advance a rate per annum equal at all
times to the sum of (x) the Base Rate in effect from time to time plus
(y) the Applicable Margin in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and
December during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii)Eurodollar Rate Advances. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving
Credit Advance to the sum of (x) the Eurodollar Rate for such Interest
Period for such Revolving Credit Advance plus (y) the Applicable Margin
in effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on
the date such Eurodollar Rate Advance shall be Converted or paid in
full.
(b) Default Interest. The Borrower shall pay interest on (i)
overdue principal of each Revolving Credit Advance owing to each Lender, payable
in arrears on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate
per annum equal at all times to 1% per annum above the rate per annum required
to be paid on such Revolving Credit Advance pursuant to clause (a)(i) or (a)(ii)
above and (ii) to the fullest extent permitted by law, the amount of any overdue
interest, fee or other amount payable hereunder, from the date such amount shall
be due until such amount shall be paid in full, payable in arrears on the date
such amount shall be paid in full and on demand, at a rate per annum equal at
all times to 1% per annum above the rate per annum required to be paid on Base
Rate Advances pursuant to clause (a)(i) above.
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SECTION 2.08. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Agent timely information for the purpose of
determining each Eurodollar Rate and each LIBO Rate. If any one or more of the
Reference Banks shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall determine such
interest rate on the basis of timely information furnished by the remaining
Reference Banks. The Agent shall give prompt notice to the Borrower and the
Lenders of the applicable interest rate determined by the Agent for purposes of
Section 2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference
Bank for the purpose of determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Agent that the Eurodollar Rate for any Interest
Period for such Advances will not adequately reflect the cost to such Required
Lenders of making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period, the Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to
make, or to Convert Revolving Credit Advances into, Eurodollar Rate Advances
shall be suspended until the Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify the Borrower and the Lenders and the Borrower
shall be deemed to have selected an Interest Period of one month.
(d) Upon the occurrence and during the continuance of any
Event of Default under Section 6.01(a), (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended.
(e) If fewer than two Reference Banks furnish timely
information to the Agent for determining the Eurodollar Rate or LIBO Rate for
any Eurodollar Rate Advances or LIBO Rate Advances, as the case may be, the
Eurodollar Rate or the LIBO Rate for such Eurodollar Rate Advance or LIBO Rate
Advance, as the case may be, shall be an interest rate per annum determined by
the Agent to be the offered rate per annum at which deposits in U.S. dollars
appears on the Dow Xxxxx Markets Page 3750 (or any successor page) as of 11:00
A.M. (London time), or in the event such offered rate is not available from the
Dow Xxxxx Markets Page 3750,
(i)the Agent shall forthwith notify the Borrower and the
Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances or LIBO Rate Advances, as the case may be,
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(ii)with respect to Eurodollar Rate Advances, each such
Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance (or if such
Advance is then a Base Rate Advance, will continue as a Base Rate
Advance), and
(iii)the obligation of the Lenders to make Eurodollar Rate
Advances or LIBO Rate Advances or to Convert Revolving Credit Advances
into Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit
Advances. The Borrower may on any Business Day, upon notice given to the Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Sections
2.08 and 2.12, Convert all Revolving Credit Advances of one Type comprising the
same Borrowing into Revolving Credit Advances of the other Type; provided,
however, that any Conversion of Base Rate Advances into Eurodollar Rate Advances
shall be in an amount not less than the minimum amount specified in Section
2.02(b) and no Conversion of any Revolving Credit Advances shall result in more
separate Revolving Credit Borrowings than permitted under Section 2.02(b). Each
such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Revolving Credit Advances to
be Converted, and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for each such Advance. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.10. Optional Prepayments of Revolving Credit
Advances. The Borrower may, in the case of Eurodollar Rate Advances, upon at
least two Business Days' notice to the Agent, and in the case of Base Rate
Advances, upon notice to the Agent not later than 11:00 A.M. on the date of such
proposed prepayment, stating in each case the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding principal amount of the Revolving Credit Advances
comprising part of the same Revolving Credit Borrowing in whole or ratably in
part, together with accrued interest to the date of such prepayment on the
principal amount prepaid; provided, however, that (x) each partial prepayment
shall be in an aggregate principal amount of $5,000,000 for any Base Rate
Advance or $10,000,000 for any Eurodollar Rate Advance or, in each case, an
integral multiple of $1,000,000 in excess thereof and (y) in the event of any
such prepayment of a Eurodollar Rate Advance, the Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 8.04(c).
SECTION 2.11. Increased Costs. (a) If, after the date hereof,
due to either (i) the introduction of or any change in or in the interpretation
of any law or regulation or (ii) the compliance with any guideline or request
from any central bank or other governmental authority
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(whether or not having the force of law), there shall be any increase in the
cost to any Lender (other than in respect of Eurocurrency Liabilities) of
agreeing to make or making, funding or maintaining Eurodollar Rate Advances
(excluding for purposes of this Section 2.11 any such increased costs resulting
from (i) Taxes or Other Taxes (as to which Section 2.14 shall govern) and (ii)
changes in the basis of taxation of overall net income or overall gross income
by the United States or by the foreign jurisdiction or state under the laws of
which such Lender is organized or has its Applicable Lending Office or any
political subdivision thereof), then the Borrower shall from time to time, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient to
compensate such Lender for such increased cost. A certificate as to the amount
of such increased cost, setting forth in reasonable detail the basis therefor
and the computation thereof, submitted to the Borrower and the Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest
error. Notwithstanding the foregoing, none of the Lenders shall deliver the
notice and certificate described in this Section 2.11(a) to the Borrower in
respect of any increased costs except in accordance with the internal policy of
such Lender as to the exercise of similar rights and remedies in similar
circumstances.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) in either case
enacted, adopted or made after the date hereof, affects or would affect the
amount of capital required or expected to be maintained by such Lender or any
corporation controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender's commitment to lend
hereunder and other commitments of this type, then, upon demand by such Lender
(with a copy of such demand to the Agent), the Borrower shall pay to the Agent
for the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation for
the reduction of the rate of return on such Lender's capital or on the capital
of such corporation, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's
commitment to lend hereunder. A certificate as to such amounts, setting forth
in reasonable detail the basis therefor and the computation thereof, submitted
to the Borrower and the Agent by such Lender shall be conclusive and binding
for all purposes, absent manifest error. Notwithstanding the foregoing, none of
the Lenders shall deliver the notice and certificate described in this Section
2.11(b) to the Borrower in respect of any requirements of additional capital
except in accordance with the internal policy of such Lender as to the exercise
of similar rights and remedies in similar circumstances.
(c) If any Lender shall give notice to the Agent and the
Borrower at any time to the effect that Eurocurrency Reserve Requirements are,
or are scheduled to become, effective and that such Lender is or will be
generally subject to such Eurocurrency Reserve Requirements (without regard to
whether such Lender will be able to benefit from proration or offsets that may
be available from time to time under Regulation D) as a result of which such
Lender will incur
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additional costs, then such Lender shall, for each day from the later of the
date of such notice and the date on which such Eurocurrency Reserve
Requirements become effective, be entitled to additional interest on each
Eurodollar Rate Advance made by it at a rate per annum determined for such day
(rounded upward to the nearest 100th of 1%) equal to the remainder obtained by
subtracting (i) the Eurodollar Rate for such Eurodollar Rate Advance from (ii)
the rate obtained by dividing such Eurodollar Rate by a percentage equal to
100% minus the then applicable Eurocurrency Reserve Requirements. Such
additional interest will be payable in arrears to the Agent, for the account of
such Lender, on each date that interest is payable on such Eurodollar Rate
Advance. Any Lender which gives a notice under this paragraph (c) shall
promptly withdraw such notice (by written notice of withdrawal given to the
Agent and the Borrower) in the event Eurocurrency Reserve Requirements cease to
apply to it or the circumstances giving rise to such notice otherwise cease to
exist.
(d) Notwithstanding anything to the contrary herein contained,
no Lender shall be entitled to claim any additional amounts pursuant to this
Section 2.11 arising with respect to any period of time prior to the date that
is 60 days prior to the date on which notice of such claim and the basis
therefor is first given to the Borrower pursuant to this Section 2.11.
SECTION 2.12. Illegality. (a) Notwithstanding any other
provision of this Agreement, if any Lender shall notify the Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
LIBO Rate Advances or to fund or maintain Eurodollar Rate Advances or LIBO Rate
Advances hereunder, (i) each Eurodollar Rate Advance or LIBO Rate Advance, as
the case may be, of such Lender will automatically, upon such demand, Convert
into a Base Rate Advance or an Advance that bears interest at the rate set
forth in Section 2.07(a)(i), as the case may be, and (ii) the obligation of
such Lender to make Eurodollar Rate Advances or LIBO Rate Advances or to
Convert Revolving Credit Advances into Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist. If any Lender shall
exercise its rights under this Section 2.12(a), all payments and prepayments of
principal which would otherwise have been applied to repay the Eurodollar Rate
Advances or LIBO Rate Advances that would have been made by such Lender or the
converted Eurodollar Rate Advances or LIBO Rate Advances of such Lender shall
instead be applied to repay the Base Rate Advances or Advances bearing interest
at the rate set forth in Section 2.07(a)(i), as the case may be, made by such
Lender in lieu of, or resulting from the conversion of, such Eurodollar Rate
Advances or LIBO Rate Advances, and all distributions of payments in respect of
interest shall be made to the Lenders ratably based on the interest rates
applicable to their respective Advances.
(b) For purposes of this Section 2.12, a notice to the
Borrower by any Lender shall be effective as to each Eurodollar Rate Advance or
LIBO Rate Advance, if lawful, on the last day
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of the Interest Period currently applicable to such Eurodollar Rate Advance or
LIBO Rate Advance; in all other cases such notice shall be effective on the
date of receipt by the Borrower.
SECTION 2.13. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later than 12:00 noon
(New York City time) on the day when due in U.S. dollars to the Agent at the
Agent's Account in same day funds. The Agent will promptly thereafter cause to
be distributed like funds relating to the payment of principal or interest or
facility fees ratably (other than amounts payable pursuant to Section 2.03,
2.11, 2.14 or 8.04(c)) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of any other
amount payable to any Lender to such Lender for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 8.07(c),
from and after the effective date specified in such Assignment and Acceptance,
the Agent shall make all payments hereunder and under the Notes in respect of
the interest assigned thereby to the Lender assignee thereunder, and the parties
to such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
Upon any Assuming Lender becoming a Lender hereunder as a result of the
effectiveness of a Commitment Increase pursuant to Section 2.05(b) and upon the
Agent's receipt of such Lender's Assumption Agreement and recording the
information contained therein in the Register, from and after the applicable
Increase Date, the Agent shall make all payments hereunder and under the Notes
in respect of the interest assumed thereby to the Assuming Lender.
(b) All computations of interest based on Citibank's base rate
shall be made by the Agent on the basis of a year of 365 or 366 days, as the
case may be, and all computations of interest based on the Eurodollar Rate or
the Federal Funds Rate and of facility fees shall be made by the Agent on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or facility fees are payable. Each determination by the
Agent of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances or LIBO Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(d) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such
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payment in full, the Agent may assume that the Borrower has made such payment
in full to the Agent on such date and the Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on such due date an amount
equal to the amount then due such Lender. If and to the extent the Borrower
shall not have so made such payment in full to the Agent, each Lender shall
repay to the Agent forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Agent, taxes
imposed on its overall net income, and franchise taxes imposed on it in lieu of
net income taxes, by the jurisdiction under the laws of which such Lender or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction
of such Lender's Applicable Lending Office or any political subdivision
thereof, and further excluding, if any Lender is found as the result of a
determination (as defined in Section 1313(a) of the Internal Revenue Code) to
be a conduit entity participating in a conduit financing arrangement as defined
in Treasury Regulations promulgated under Section 7701(1) of the Internal
Revenue Code, the excess of the United States taxes imposed with respect to
such Lender over the amount of United States taxes that would have been imposed
with respect to such Lender if such determination had not been made with
respect to such Lender (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Lender or the Agent, (i) the sum
payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.14) such Lender or the Agent (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, performing under, or
otherwise with respect to, this Agreement or the Notes (hereinafter referred to
as "Other Taxes").
(c) The Borrower shall indemnify each Lender and the Agent for
the full amount of Taxes or Other Taxes (including, without limitation, any
taxes imposed by any
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jurisdiction on amounts payable under this Section 2.14) imposed on or paid by
such Lender or the Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification shall be made within 30 days from the date such Lender or
the Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent, at its address referred to in Section 8.02,
the original or a certified copy of a receipt evidencing payment thereof. In the
case of any payment hereunder or under the Notes by or on behalf of the Borrower
through an account or branch outside the United States or by or on behalf of the
Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Agent, at such address, an
opinion of counsel acceptable to the Agent stating that such payment is exempt
from Taxes. For purposes of this subsection (d) and subsection (e), the terms
"United States" and "United States person" shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each Initial Lender and on the date of the
Assumption Agreement or the Assignment and Acceptance, as the case may be,
pursuant to which it becomes a Lender in the case of each other Lender, and from
time to time thereafter as requested in writing by the Borrower (but only so
long as such Lender remains lawfully able to do so), shall provide each of the
Agent and the Borrower with two original Internal Revenue Service forms 1001 or
4224, as appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that such Lender is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes. If the forms provided by a Lender at the time such
Lender first becomes a party to this Agreement indicate a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be
considered excluded from Taxes unless and until such Lender provides the
appropriate forms certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate only shall be considered excluded from Taxes for periods
governed by such forms; provided, however, that, if at the date of the
Assumption Agreement or the Assignment and Acceptance, as the case may be,
pursuant to which a Lender assignee becomes a party to this Agreement, the
Lender assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to the
Lender assignee on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date hereof
by Internal Revenue Service form 1001 or 4224, that the Lender reasonably
considers to be confidential, the Lender shall give notice thereof to the
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Borrower and shall not be obligated to include in such form or document such
confidential information.
(f) For any period with respect to which a Lender has failed
to provide the Borrower with the appropriate form described in Section 2.14(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of subsection (e) above),
such Lender shall not be entitled to indemnification under Section 2.14(a) or
(c) with respect to Taxes imposed by the United States by reason of such
failure; provided, however, that should a Lender become subject to Taxes because
of its failure to deliver a form required hereunder, the Borrower shall take
such steps as the Lender shall reasonably request to assist the Lender to
recover such Taxes.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.14 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any additional amounts that
may thereafter accrue and would not, in the reasonable judgment of such Lender,
be otherwise disadvantageous to such Lender.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Revolving Credit Advances
owing to it (other than pursuant to Section 2.11, 2.14 or 8.04(c)) in excess of
its ratable share of payments on account of the Revolving Credit Advances
obtained by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Revolving Credit Advances owing to them as
shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.15 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds) for
general corporate purposes of the
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Borrower and its Subsidiaries, including acquisitions, stock repurchases and
commercial paper backstop.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement shall become
effective on and as of the first date (the "Effective Date") on which the
following conditions precedent have been satisfied:
(a)The Borrower shall have paid all accrued fees and expenses
of the Agent and the Lenders (including the accrued fees and expenses
of counsel to the Agent).
(b)On the Effective Date, the following statements shall be
true and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Borrower, dated
the Effective Date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct in all material respects on and as
of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(c)The Agent shall have received on or before the Effective
Date the following, each dated such day, in form and substance
satisfactory to the Agent and (except for the Revolving Credit Notes)
in sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order of the
Lenders, respectively.
(ii) Certified copies of the resolutions of the
Board of Directors of the Borrower approving this Agreement
and the Notes, and of all documents evidencing other
necessary corporate action and governmental approvals, if
any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
this Agreement and the Notes and the other documents to be
delivered hereunder.
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(iv) A favorable opinion of Xxxxx X. Xxxxxxx,
general counsel for the Borrower, substantially in the form
of Exhibit E hereto and as to such other matters as any
Lender through the Agent may reasonably request.
(v) A favorable opinion of Shearman & Sterling,
counsel for the Agent, in form and substance satisfactory to
the Agent.
SECTION 3.02. Conditions Precedent to Each Revolving Credit
Borrowing. The obligation of each Lender to make an Advance on the occasion of
each Borrowing (other than a Competitive Bid Advance) shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date
of such Borrowing the following statements shall be true (and each of the giving
of the applicable Notice of Revolving Credit Borrowing and the acceptance by
the Borrower of the proceeds of such Revolving Credit Borrowing shall constitute
a representation and warranty by the Borrower that on the date of such Borrowing
such statements are true):
(a)the representations and warranties contained in Section
4.01 are correct in all material respects on and as of the date of such
Revolving Credit Borrowing, before and after giving effect to such
Revolving Credit Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date except to the extent
such representations and warranties expressly relate to an earlier
date, and
(b)no event has occurred and is continuing, or would result
from such Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
SECTION 3.03. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (i) the Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto, (ii) on
or before the date of such Competitive Bid Borrowing, but prior to such
Competitive Bid Borrowing, the Agent shall have received a Competitive Bid Note
payable to the order of such Lender for each of the one or more Competitive Bid
Advances to be made by such Lender as part of such Competitive Bid Borrowing, in
a principal amount equal to the principal amount of the Competitive Bid Advance
to be evidenced thereby and otherwise on such terms as were agreed to for such
Competitive Bid Advance in accordance with Section 2.03, and (iii) on the date
of such Competitive Bid Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of Competitive Bid Borrowing and the
acceptance by the Borrower of the proceeds of such Competitive Bid Borrowing
shall constitute a representation and warranty by the Borrower that on the date
of such Competitive Bid Borrowing such statements are true):
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(a)the representations and warranties contained in Section
4.01 are correct in all material respects on and as of the date of such
Competitive Bid Borrowing, before and after giving effect to such
Competitive Bid 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 Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
SECTION 3.04. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Agent responsible for the transactions contemplated by this
Agreement shall have received notice from such Lender prior to the date that
the Borrower, by notice to the Lenders, designates as the proposed Effective
Date, specifying its objection thereto. The Agent shall promptly notify the
Lenders and the Borrower of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a)The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b)The execution, delivery and performance by the Borrower of
this Agreement and the Notes, and the consummation of the transactions
contemplated hereby, are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's charter or by-laws or (ii) law or any
contractual restriction binding on or affecting the Borrower.
(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 the Borrower of this Agreement or the Notes.
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(d)This Agreement has been, and each of the Notes when
delivered hereunder will have been, duly executed and delivered by the
Borrower. This Agreement is, and each of the Notes when delivered
hereunder will be, the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with their
respective terms.
(e)The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 29, 1996, and the related Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion
of Price Waterhouse LLP, independent public accountants copies of which
have been furnished to each Lender, fairly present the Consolidated
financial condition of the Borrower and its Subsidiaries as at such
date and the Consolidated results of the operations of the Borrower
and its Subsidiaries for the periods ended on such date, all in
accordance with generally accepted accounting principles consistently
applied. Between December 29, 1996 and the date hereof, there has been
no Material Adverse Change.
(f)There is no pending or threatened action, suit,
investigation, litigation or proceeding, including, without limitation,
any Environmental Action, affecting the Borrower or any of its
Subsidiaries before any court, governmental agency or arbitrator that
(i) is pending or threatened on the date hereof and is reasonably
likely to have a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of this Agreement or any Note or
the consummation of the transactions contemplated hereby.
(g)The Borrower is not, and immediately after the application
by the Borrower of the proceeds of each Advance will not be an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended.
(h)After giving effect to the application of the proceeds of
each Advance, not more than 25% of the value of the assets of the
Borrower and its Subsidiaries (as determined in good faith by the
Borrower) subject to the provisions of Section 5.02(a) or subject to
any restriction contained in any agreement or instrument between the
Borrower and any Lender or any Affiliate of any Lender relating to Debt
and within the scope of Section 6.01(d) will consist of or be
represented by Margin Stock.
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ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
(a)Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA and Environmental Laws,
except to the extent that any failures to so comply, individually or in
the aggregate, would not be reasonably likely to have a Material
Adverse Effect; provided, however, that neither the Borrower nor any of
its Subsidiaries shall be required to comply with any law, rule,
regulation or order to the extent it is being contested in good faith
and by proper proceedings and as to which appropriate reserves are
being maintained.
(b)Payment of Taxes, Etc. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become
delinquent, all material taxes, assessments and governmental charges or
levies imposed upon it or upon its property; provided, however, that
neither the Borrower nor any of its Subsidiaries shall be required to
pay or discharge any such tax, assessment, charge or claim that is
being contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained.
(c)Maintenance of Insurance. Maintain, and cause each of its
Significant Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and
covering such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same general
areas in which the Borrower or such Significant Subsidiary operates.
(d)Preservation of Corporate Existence, Etc. Preserve and
maintain its corporate existence, rights (charter and statutory) and
franchises if the loss or failure to maintain the same could,
individually or in the aggregate, be reasonably likely to have a
Material Adverse Effect; provided, however, that the Borrower may
consummate any merger or consolidation permitted under Section 5.02(b).
(e)Visitation Rights. At any reasonable time and from time to
time on reasonable notice and at reasonable intervals, permit the Agent
or any of the Lenders, or any agents or representatives thereof, to
visit the properties of the Borrower and any of its Subsidiaries and to
discuss the affairs, finances and accounts of the Borrower and any of
its Subsidiaries with any of their officers or directors and, during
the continuance of any
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Default, to examine and make copies of and abstracts from the records
and books of account of the Borrower and any of its Subsidiaries and
to discuss the affairs, finances and accounts of the Borrower and any
of its Subsidiaries with their independent certified public
accountants.
(f)Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which entries shall be
made of all financial transactions and the assets and business of the
Borrower and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time.
(g)Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Significant Subsidiaries to maintain and preserve,
all of its properties that are used or useful in the conduct of its
business in good working order and condition, ordinary wear and tear
excepted, except to the extent that any failure to do so, individually
or in the aggregate, would not be reasonably likely to have a Material
Adverse Effect.
(h)Primary Business. The Borrower shall continue to be engaged
primarily in lines of business as carried on at the date hereof or
lines of business related thereto.
(i)Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 55
days after the end of each of the first three quarters of
each fiscal year of the Borrower, the Consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of
such quarter and Consolidated statements of income and cash
flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending
with the end of such quarter, duly certified (subject to
year-end audit adjustments) by the chief financial officer of
the Borrower as having been prepared in accordance with
generally accepted accounting principles and certificates of
the chief financial officer of the Borrower as to compliance
with the terms of this Agreement, provided that in the event
of any change in GAAP used in the preparation of such
financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section
5.03, a statement of reconciliation conforming such financial
statements to GAAP;
(ii) as soon as available and in any event within
105 days after the end of each fiscal year of the Borrower, a
copy of the annual audit report for such year for the
Borrower and its Subsidiaries, containing the Consolidated
balance sheet of the Borrower and its Subsidiaries as of the
end of such fiscal year and Consolidated statements of income
and cash flows of the Borrower and its Subsidiaries for such
fiscal year, in each case accompanied by an opinion by Price
Waterhouse LLP or
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other independent public accountants of recognized national
standing, provided that in the event of any change in GAAP
used in the preparation of such financial statements, the
Borrower shall also provide, if necessary for the
determination of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to GAAP;
(iii) as soon as possible and in any event within
seven days after the occurrence of each Default continuing on
the date of such statement, a statement of the chief
financial officer of the Borrower setting forth details of
such Default and the action that the Borrower has taken and
proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof,
copies of all quarterly and annual reports and proxy
solicitations that the Borrower sends to its public
securityholders generally, and copies of all reports on Form
8-K and registration statements for the public offering
(other than pursuant to employee Plans) of securities that
the Borrower files with the Securities and Exchange
Commission or any national securities exchange;
(v) promptly after the commencement thereof, notice
of all actions and proceedings before any court, governmental
agency or arbitrator affecting the Borrower or any of its
Subsidiaries of the type described in Section 4.01(f); and
(vi) such other information respecting the Borrower
or any of its Subsidiaries as any Lender through the Agent
may from time to time reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will not:
(a)Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect
to any of its properties (which for purposes of this subsection (a)
shall be deemed not to include shares of the Borrower's capital stock),
whether now owned or hereafter acquired, or assign, or permit any of
its Subsidiaries to assign, any right to receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real
property or equipment acquired or held by the Borrower or any
Subsidiary in the ordinary course of business to secure the
purchase price of such property or equipment or to secure
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Debt incurred solely for the purpose of financing the
acquisition of such property or equipment, or Liens existing
on such property or equipment at the time of its acquisition
(other than any such Liens created in contemplation of such
acquisition that were not incurred to finance the acquisition
of such property) or extensions, renewals or replacements of
any of the foregoing for the same or a lesser amount,
provided, however, that no such Lien shall extend to or cover
any properties of any character other than the real property
or equipment being acquired (or, in the case of improvements
to real property, the real property being improved), and no
such extension, renewal or replacement shall extend to or
cover any properties not theretofore subject to the Lien
being extended, renewed or replaced,
(iii) the Liens existing on the Effective Date and
described on Schedule 5.02(a) hereto,
(iv) Liens securing Debt payable to the Borrower,
(v)other Liens securing Debt in an aggregate principal amount
not to exceed at any time outstanding an amount equal to 20%
of Consolidated Shareholders' Equity, and
(vi) the replacement, extension or renewal of any
Lien permitted by clause (iii) above upon or in the same
property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount) of the
Debt secured thereby.
(b)Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) to, any Person, provided that
the Borrower may merge or consolidate with any other Person so long as
the Borrower is the surviving corporation and provided further that no
Default shall have occurred and be continuing at the time of such
proposed transaction or would result therefrom.
(c)Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as permitted by generally accepted
accounting principles and, in the case of any significant change,
concurred with by the Borrower's independent public accountants.
SECTION 5.03. Financial Covenant. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will maintain Consolidated Shareholders' Equity of not less than $850,000,000.
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a)The Borrower shall fail to pay any principal of any Advance
when the same becomes due and payable (or, if any such failure is due
solely to technical or administrative difficulties relating to the
transfer of such principal payment, within two Business Days after the
same becomes due and payable); or the Borrower shall fail to pay any
interest on any Advance or make any other payment of fees or other
amounts payable under this Agreement or any Note within three Business
Days after the same becomes due and payable; or
(b)Any representation or warranty made by the Borrower herein
or by the Borrower (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect
when made; or
(c)(i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d) or (i)(iii), 5.02 or
5.03, or (ii) the Borrower shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its part to
be performed or observed if such failure shall remain unremedied for 20
days after written notice thereof shall have been given to the Borrower
by the Agent or any Lender; or
(d)The Borrower or any of its Subsidiaries shall fail to pay
any principal of or premium or interest on any Debt (other than
Non-Recourse Debt) that is outstanding in a principal amount of at
least $40,000,000 in the aggregate (but excluding Debt outstanding
hereunder) of the Borrower or such Subsidiary (as the case may be),
when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any
other event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate,
or to permit the acceleration of, the maturity of such Debt; or
(e)The Borrower or any of its Significant Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts
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generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the
Borrower or any of its Significant Subsidiaries seeking to adjudicate
it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of
60 days, or in such proceeding the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its property
shall occur; or the Borrower or any of its Significant Subsidiaries
shall take any corporate action to authorize any of the actions set
forth above in this subsection (e); or
(f)Any judgment or order of a court of competent jurisdiction
for the payment of money in excess of $20,000,000 shall be rendered
against the Borrower or any of its Significant Subsidiaries and either
(i) enforcement proceedings shall have been legally commenced by any
creditor upon such judgment or order or (ii) there shall be any period
of 60 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect provided, however, that any such judgment or order
shall not be an Event of Default under this Section 6.01(f) if and for
so long as (x) the amount of such judgment or order is covered by a
valid and binding policy of insurance between the defendant and the
insurer covering payment thereof and (y) such insurer, which shall be
rated at least "A-" by A.M. Best Company, has been notified of, and has
not disputed the claim made for payment of, the amount of such judgment
or order; or
(g)(i) Any Person or two or more Persons acting in concert
(other than the Xxxxxx Interests) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934),
directly or indirectly, of Voting Stock of the Borrower (or other
securities convertible into such Voting Stock) representing 30% or more
of the combined voting power of all Voting Stock of the Borrower and
such combined voting power exceeds the then current voting power of the
Voting Stock of the Borrower (or other securities convertible into such
Voting Stock) controlled by the Xxxxxx Interests; or (ii) Continuing
Directors of the Borrower shall cease for any reason to constitute a
majority of the board of directors of the Borrower; or
(h)The Borrower or any of its ERISA Affiliates shall incur
liability as a result of one or more of the following: (i) the
occurrence of any ERISA Event; (ii) the partial or complete withdrawal
of the Borrower or any of its ERISA Affiliates from a
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Multiemployer Plan; or (iii) the reorganization or termination of a
Multiemployer Plan; and, in the reasonable opinion of the Required
Lenders, such incurrence would be likely to result in a Material
Adverse Effect, provided that any such liability in an amount not to
exceed $20,000,000 shall be deemed not to be likely to result in a
Material Adverse Effect;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Notes,
all interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Notes, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to the Borrower under the
Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances
shall automatically be terminated and (B) the Notes, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
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the payee of any Note as the holder thereof until the Agent receives and accepts
an Assignment and Acceptance entered into by the Lender that is the payee of
such Note, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 8.07; (ii) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith
by it in accordance with the advice of such counsel, accountants or experts;
(iii) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with this Agreement; (iv)
shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement on
the part of the Borrower or to inspect the property (including the books and
records) of the Borrower; (v) shall not be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; and (vi) shall incur no liability under or in respect of this Agreement
by acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier, telegram or telex) reasonably believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify
the Agent (to the extent not reimbursed by the Borrower), ratably according to
the respective principal amounts of the Revolving Credit Notes then held by each
of them (or if no Revolving Credit Notes are at the time outstanding or if any
Revolving Credit Notes are held by Persons that are not Lenders, ratably
according to the respective amounts of their Commitments), from and against any
and all
51
46
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the Agent in
any way relating to or arising out of this Agreement or any action taken or
omitted by the Agent under this Agreement, provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent promptly
upon demand for its ratable share of any out-of-pocket expenses (including
counsel fees) incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, to the
extent that the Agent is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 7.07. Co-Agent. Wachovia has been designated as
Co-Agent in recognition of its Commitment, and the use of such title does not
impose on Wachovia any duties or obligations greater than those of any other
Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Revolving Credit Notes, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the
52
47
Required Lenders, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders, do any of the following: (a) waive any of the
conditions specified in Section 3.01, (b) increase the Commitments of the
Lenders other than as provided in Section 2.05(b), (c) reduce the principal of,
or interest on, the Revolving Credit Notes or any fees or other amounts payable
hereunder, (d) postpone any date fixed for any payment of principal of, or
interest on, the Revolving Credit Notes or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Revolving Credit Notes that shall be required
for the Lenders or any of them to take any action hereunder or (f) amend this
Section 8.01; provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Agent in addition to the Lenders required
above to take such action, affect the rights or duties of the Agent under this
Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic or telex communication) and telecopied, telegraphed, telexed or
delivered, if to the Borrower, at its address at 0000 00xx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000, Attention: Treasurer; if to any Initial Lender, at its
Domestic Lending Office specified opposite its name on Schedule I hereto; if to
any other Lender, at its Domestic Lending Office specified in the Assumption
Agreement or the Assignment and Acceptance pursuant to which it became a Lender;
and if to the Agent, at its address at Xxx Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx,
Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxx; or, as to the Borrower or the Agent,
at such other address as shall be designated by such party in a written notice
to the other parties and, as to each other party, at such other address as shall
be designated by such party in a written notice to the Borrower and the Agent.
All such notices and communications shall, when hand delivered, telecopied,
telegraphed or telexed, be effective when received. Delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right 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 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand all reasonable out-of-pocket costs and expenses of the Agent in
connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, (A) all due diligence,
syndication (including printing, distribution and bank meetings), transportation
and duplication
53
48
expenses, and (B) the reasonable fees and expenses of counsel for the Agent
with respect thereto and with respect to advising the Agent as to its rights
and responsibilities under this Agreement. The Borrower further agrees to pay
on demand all reasonable out-of-pocket costs and expenses of the Agent and the
Lenders, if any (including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement, the Notes and the other
documents to be delivered hereunder, including, without limitation, reasonable
fees and expenses of counsel for the Agent and each Lender in connection with
the enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the
Agent and each Lender and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified
Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable
fees and expenses of counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or
in connection with or by reason of, or in connection with the
preparation for a defense of, any investigation, litigation or
proceeding arising out of, related to or in connection with the Notes,
this Agreement, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Advances, whether or not
such investigation, litigation or proceeding is brought by the
Borrower, its directors, shareholders or creditors or an Indemnified
Party or any other Person or any Indemnified Party is otherwise a party
thereto and whether or not the transactions contemplated hereby are
consummated, except to the extent such claim, damage, loss, liability
or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's
gross negligence or willful misconduct or breach of its obligations
under this Agreement.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance or LIBO Rate Advance is made by the Borrower to
or for the account of a Lender other than on the last day of the
Interest Period for such Advance, as a result of a payment or
Conversion pursuant to Section 2.08(d) or (e), 2.09, 2.10 or 2.12,
acceleration of the maturity of the Notes pursuant to Section 6.01 or
for any other reason, or by an Eligible Assignee to a Lender other than
on the last day of an Interest Period for such Advance upon an
assignment of rights and obligations under this Agreement pursuant to
Section 8.07 as a result of a demand by the Borrower pursuant to
Section 8.07(a), the Borrower shall, upon demand by such Lender (with a
copy of such demand to the Agent), pay to the Agent for the account of
such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a
result of such payment or Conversion, including, without limitation,
any loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the
Borrower contained in Sections 2.11, 2.14 and
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49
8.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Agent to declare the Notes due and payable pursuant to the provisions of
Section 6.01, each Lender and each of its Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Lender or such Affiliate to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or hereafter existing
under this Agreement and the Note held by such Lender, whether or not such
Lender shall have made any demand under this Agreement or such Note and although
such obligations may be unmatured. Each Lender agrees promptly to notify the
Borrower after any such set-off and application, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of each Lender and its Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become effective
upon satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Agent and each Lender and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender
may with the consent of the Agent and the Borrower (which consent shall not be
unreasonably withheld or delayed) and, if demanded by the Borrower (following a
demand by such Lender pursuant to Section 2.11 or 2.14 or following such
Lender's Downgrade) at a time when no Default has occurred and is continuing
upon at least five Business Days' notice to such Lender and the Agent, will
assign to one or more Persons all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Revolving Credit Advances owing to it and the Revolving Credit
Note or Notes held by it); provided, however, that (i) each such assignment
shall be of a constant, and not a varying, percentage of all rights and
obligations under this Agreement (other than any right to make Competitive Bid
Advances, Competitive Bid Advances owing to it and Competitive Bid Notes), (ii)
except in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment
55
50
of the assigning Lender being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to
such assignment) shall in no event be less than $10,000,000 or an integral
multiple of $1,000,000 in excess thereof and the amount of the Commitment of
such Lender remaining after such assignment shall not be less than $10,000,000
or shall be zero, (iii) each such assignment shall be to an Eligible Assignee,
(iv) each such assignment made as a result of a demand by the Borrower pursuant
to this Section 8.07(a) shall be arranged by the Borrower after consultation
with the Agent and shall be either an assignment of all of the rights and
obligations of the assigning Lender under this Agreement or an assignment of a
portion of such rights and obligations made concurrently with another such
assignment or other such assignments that together cover all of the rights and
obligations of the assigning Lender under this Agreement, (v) no Lender shall
be obligated to make any such assignment as a result of a demand by the
Borrower pursuant to this Section 8.07(a) unless and until such Lender shall
have received one or more payments from either the Borrower or one or more
Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together
with accrued interest thereon to the date of payment of such principal amount
and all other amounts payable to such Lender under this Agreement, and (vi)
unless such assignment is demanded by the Borrower, the parties to each such
assignment shall execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any
Revolving Credit Note subject to such assignment and a processing and
recordation fee of $3,500. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with
56
51
copies of the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Revolving Credit Note or Notes subject to such
assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower. Within five
Business Days after its receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Agent in exchange for the surrendered
Revolving Credit Note a new Note to the order of such Eligible Assignee in an
amount equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Commitment hereunder, a
new Revolving Credit Note to the order of the assigning Lender in an amount
equal to the Commitment retained by it hereunder. Such new Revolving Credit Note
or Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Revolving Credit Note or Notes, shall be
dated the effective date of such Assignment and Acceptance and shall otherwise
be in substantially the form of Exhibit A-1 hereto.
(d) The Agent shall maintain at its address referred to in
Section 8.02 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Advances owing to,
each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is recorded
in the Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks
or other entities (other than the Borrower or any of its Affiliates) in or to
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its
57
52
Commitment, the Advances owing to it and the Note or Notes held by it) with the
consent of the Borrower (which consent shall not be unreasonably withheld or
delayed); provided, however, that (i) such Lender's obligations under this
Agreement (including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and (v) no
participant under any such participation shall have any right to approve any
amendment or waiver of any provision of this Agreement or any Note, or any
consent to any departure by the Borrower therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest
on, the Notes or any fees or other amounts payable hereunder, in each case to
the extent subject to such participation, or postpone any date fixed for any
payment of principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Confidentiality. Neither the Agent nor any
Lender shall disclose any Confidential Information to any other Person without
the consent of the Borrower, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, accountants, auditors,
counsel, agents and advisors and, as contemplated by Section 8.07(f), to actual
or prospective assignees and participants, and then only on a confidential
basis, (b) as required by any law, rule or regulation or judicial process, (c)
to any rating agency when required by it, provided that, prior to any such
disclosure, such rating agency shall undertake to preserve the confidentiality
of any Confidential Information relating to the Borrower received by it from
such Lender and (d) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
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53
SECTION 8.09. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the Notes, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
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54
SECTION 8.12. Waiver of Jury Trial. Each of the Borrower, the
Agent and the Lenders hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
THE WASHINGTON POST COMPANY
By
--------------------------
Title:
CITIBANK, N.A.
as Agent
By
--------------------------
Title:
WACHOVIA BANK, N.A.
as Co-Agent
By
--------------------------
Title:
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55
Initial Lenders
Commitment
$100,000,000 CITIBANK, N.A.
By
--------------------------
Title:
$100,000,000 WACHOVIA BANK, N.A.
By
-------------------------------
Title:
$ 50,000,000 THE BANK OF NEW YORK
By
-------------------------------
Title:
$ 50,000,000 CRESTAR BANK
By
-------------------------------
Title:
$ 75,000,000 THE FIRST NATIONAL BANK
OF CHICAGO
By
-------------------------------
Title:
61
56
$ 25,000,000 FIRST NATIONAL BANK OF
MARYLAND
By
-------------------------------
Title:
$ 50,000,000 FIRST UNION NATIONAL BANK
By
-------------------------------
Title:
$ 25,000,000 MELLON BANK, N.A.
By
-------------------------------
Title:
$ 25,000,000 XXXXX BANK, N.A.
By
-------------------------------
Title:
$500,000,000 Total of the Commitments
62
SCHEDULE I
The Washington Post Company
APPLICABLE LENDING OFFICES
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE
---------------------- ----------------------- -------------------------
Citibank, N.A. 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Wachovia Bank, N.A. 000 Xxxxxxxxx Xxxxxx, X.X. 000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000 Xxxxxxx, Xxxxxxx 00000
The Bank of Xxx Xxxx Xxx Xxxx Xxxxxx Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Crestar Bank 0000 Xxx Xxxx Xxxxxx XX 0000 Xxx Xxxx Xxxxxx XX
5th Floor 5th Floor
Washington, DC 20005 Xxxxxxxxxx, XX 00000
The First National Bank One First National Plaza One First National Plaza
of Chicago Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
First National Bank of 000 00xx Xxxxxx XX 000 00xx Xxxxxx XX
Xxxxxxxx Xxxxx 0000 North Suite 1000 North
Washington, DC 20005 Xxxxxxxxxx, XX 00000
First Union National 000 X. Xxxxxxx Xxxxxx 301 S. College Street
Bank DC-5 DC-5
Xxxxxxxxx, XX 00000-0000 Xxxxxxxxx, XX 00000-0000
Mellon Bank, N.A. One Mellon Bank Center One Mellon Bank Center
000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Xxxxx Bank, N.A. 000 00xx Xxxxxx XX 000 00xx Xxxxxx XX
00xx Xxxxx 00xx Xxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
63
SCHEDULE 5.02(a)
EXISTING LIENS
None
64
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated: March 17, 1998
FOR VALUE RECEIVED, the undersigned, THE WASHINGTON POST
COMPANY, a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of _________________________ (the "Lender") for the account of its
Applicable Lending Office on the Termination Date (each as defined in the Credit
Agreement referred to below) the principal sum of U.S.$[amount of the Lender's
Commitment in figures] or, if less, the aggregate principal amount of the
Revolving Credit Advances made by the Lender to the Borrower pursuant to the
Credit Agreement dated as of March 17, 1998 among the Borrower, the Lender and
certain other lenders parties thereto, Citibank, N.A., as Agent for the Lender
and such other lenders, and Wachovia Bank, N.A., as Co-Agent (as amended or
modified from time to time, the "Credit Agreement"; the terms defined therein
being used herein as therein defined), outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Revolving Credit Advance from the date of such Revolving Credit
Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Agent, at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, in same day funds. Each Revolving Credit Advance owing to
the Lender by the Borrower pursuant to the Credit Agreement, and all payments
made on account of principal thereof, shall be recorded by the Lender and, prior
to any transfer hereof, endorsed on the grid attached hereto which is part of
this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes
referred to in, and is entitled to the benefits of, the Credit Agreement. The
Credit Agreement, among other things, (i) provides for the making of Revolving
Credit Advances by the Lender to the Borrower from time to time in an aggregate
amount not to exceed at any time outstanding the U.S. dollar amount first above
mentioned, the indebtedness of the Borrower resulting from each such Revolving
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Credit Advance being evidenced by this Promissory Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified.
THE WASHINGTON POST COMPANY
By
-------------------------------
Title:
66
ADVANCES AND PAYMENTS OF PRINCIPAL
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
---- --------- -------------- ---------------- --------
67
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated: March 17, 1998
FOR VALUE RECEIVED, the undersigned, THE WASHINGTON POST
COMPANY, a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of _________________________ (the "Lender") for the account of its
Applicable Lending Office (as defined in the Credit Agreement dated as of March
17, 1998 among the Borrower, the Lender and certain other lenders parties
thereto, Citibank, N.A., as Agent for the Lender and such other lenders, and
Wachovia Bank, N.A., as Co-Agent (as amended or modified from time to time, the
"Credit Agreement"; the terms defined therein being used herein as therein
defined)), on _______________, 199_, the principal amount of
U.S.$_______________.
The Borrower promises to pay interest on the unpaid principal
amount hereof from the date hereof until such principal amount is paid in full,
at the interest rate and payable on the interest payment date or dates provided
below:
[Interest Rate: _____% per annum (calculated on the basis of a year of
_____ days for the actual number of days elapsed).]
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A. for the account of the Lender at the
office of Citibank, N.A., at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 in same
day funds.
This Promissory Note is one of the Competitive Bid Notes
referred to in, and is entitled to the benefits of, the Credit Agreement. The
Credit Agreement, among other things, contains provisions for acceleration of
the maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
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This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
THE WASHINGTON POST COMPANY
By
-------------------------------
Title:
69
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
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, The Washington Post Company, refers to the
Credit Agreement, dated as of March 17, 1998 (as amended or modified from time
to time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, certain Lenders parties thereto,
Citibank, N.A., as Agent for said Lenders, and Wachovia Bank, N.A., as Co-Agent,
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 _______________, 199_.
(ii) The Type of Advances comprising the Proposed Revolving
Credit Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit
Borrowing is $_______________.
[(iv) The initial Interest Period for each Eurodollar 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 are correct in all material respects,
before and after giving effect to the Proposed Revolving Credit
Borrowing and to the application of the proceeds therefrom,
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as though made on and as of such date, except to the extent they
expressly relate to an earlier 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 WASHINGTON POST COMPANY
By
-------------------------------
Title:
71
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
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, The Washington Post Company, refers to the
Credit Agreement, dated as of March 17, 1998 (as amended or modified from time
to time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, certain Lenders parties thereto,
Citibank, N.A., as Agent for said Lenders, and Wachovia Bank, N.A., as Co-Agent,
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) Interest Payment Date(s) ______________________
(F) ___________________ ______________________
(G) ___________________ ______________________
(H) ___________________ ______________________
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 are correct in all material respects, 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,
except to the extent they expressly relate to an earlier date;
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2
(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,
THE WASHINGTON POST COMPANY
By
-------------------------------
Title:
73
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of March
17, 1998 (as amended or modified from time to time, the "Credit Agreement")
among The Washington Post Company, a Delaware corporation (the "Borrower"), the
Lenders (as defined in the Credit Agreement), Citibank, N.A., as agent for the
Lenders (the "Agent"), and Wachovia Bank, N.A., as co-agent. Terms defined in
the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Credit Agreement as of the
date hereof (other than in respect of Competitive Bid Advances and Competitive
Bid Notes) equal to the percentage interest specified on Schedule 1 hereto of
all outstanding rights and obligations under the Credit Agreement (other than in
respect of Competitive Bid Advances and Competitive Bid Notes). After giving
effect to such sale and assignment, the Assignee's Commitment and the amount of
the Revolving Credit Advances owing to the Assignee will be as set forth on
Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto; and (iv) attaches the Revolving Credit Note
held by the Assignor and requests that the Agent exchange such Revolving Credit
Note for a new Revolving Credit Note payable to the order of the Assignee in an
amount equal to the Commitment assumed by the Assignee pursuant hereto or new
Revolving Credit Notes payable to the order of the Assignee in an amount equal
to the Commitment assumed by the Assignee pursuant hereto and the Assignor in an
amount equal to the Commitment retained by the Assignor under the Credit
Agreement, respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently
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2
and without reliance upon the Agent, the Assignor or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will perform
in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (vi)
attaches any U.S. Internal Revenue Service forms required under Section 2.14 of
the Credit Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under the Credit
Agreement and the Revolving Credit Notes in respect of the interest assigned
hereby (including, without limitation, all payments of principal, interest and
facility fees with respect thereto) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments under the Credit Agreement
and the Revolving Credit Notes for periods prior to the Effective Date directly
between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
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IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
76
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: %
-----
Assignee's Commitment: $
----------
Aggregate outstanding principal amount of Revolving
Credit Advances assigned: $
----------
Principal amount of Revolving Credit Note payable to Assignee: $
----------
Principal amount of Revolving Credit Note payable to Assignor: $
----------
Effective Date:* , 199
--------------- -
[NAME OF ASSIGNOR], as Assignor
By
-------------------------------
Title:
Dated: , 199
---------------- -
[NAME OF ASSIGNEE], as Assignee
By
-------------------------------
Title:
Dated: , 199
---------------- -
Domestic Lending Office:
--------
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
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[Address]
Eurodollar Lending Office:
[Address]
Accepted and Approved this
__________ day of _______________, 199_
CITIBANK, N.A., as Agent
By ____________________________________
Title:
Approved this __________ day
of _______________, 199_
THE WASHINGTON POST COMPANY
By ____________________________________
Title:
78
EXHIBIT D - FORM OF
ASSUMPTION AGREEMENT
Dated: ________
The Washington Post Company
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Citibank, N.A., as Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of March
17, 1998 among The Washington Post Company (the "Borrower"), the Lenders parties
thereto, Citibank, N.A., as Agent, and Wachovia Bank, N.A., as Co-Agent (the
"Credit Agreement"; terms defined therein being used herein as therein defined),
for such Lenders.
The undersigned (the "Assuming Lender") proposes to become an
Assuming Lender pursuant to Section 2.05(b) of the Credit Agreement and, in that
connection, hereby agrees that it shall become a Lender for purposes of the
Credit Agreement on [applicable Increase Date] and that its Commitment shall as
of such date be $__________.
The undersigned (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01(e) thereof, the most recent financial statements referred to
in Section 5.01(i) thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assumption Agreement; (ii) agrees that it will, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement;
(iii) appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement as are delegated
to the Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (iv) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement are
required to be performed
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by it as a Lender; (v) confirms that it is an Eligible Assignee; (vi) specifies
as its Lending Office (and address for notices) the offices set forth beneath
its name on the signature pages hereof; and (vii) attaches the forms prescribed
by the Internal Revenue Service of the United States required under Section 2.14
of the Credit Agreement.
The Assuming Lender requests that the Borrower deliver to the
Agent (to be promptly delivered to the Assuming Lender) a Revolving Credit Note
payable to the order of the Assuming Lender, dated as of the [Increase Date] and
substantially in the form of Exhibit A-1 to the Credit Agreement.
The effective date for this Assumption Agreement shall be
[applicable Increase Date]. Upon delivery of this Assumption Agreement to the
Borrower and the Agent, and satisfaction of all conditions imposed under Section
2.05(b) as of [date specified above], the undersigned shall be a party to the
Credit Agreement and have the rights and obligations of a Lender thereunder. As
of [date specified above], the Agent shall make all payments under the Credit
Agreement in respect of the interest assumed hereby (including, without
limitation, all payments of principal, interest and commitment fees) to the
Assuming Lender.
This Assumption Agreement may be executed in counterparts and
by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assumption Agreement.
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This Assumption Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
Very truly yours,
[NAME OF ASSUMING LENDER]
By ________________________
Name:
Title:
Domestic
Lending Office
(and address
for notices):
[Address]
Eurodollar Lending Office:
[Address]
Acknowledged and Agreed to:
THE WASHINGTON POST COMPANY
By ________________________
Name:
Title:
81
EXHIBIT E
March __, 1998
To each of the Lenders parties
to the Credit Agreement dated
as of March 17, 1998 among
The Washington Post Company,
said Lenders, Citibank, N.A., as
Agent for said Lenders, and
Wachovia Bank, N.A.,
as Co-Agent
The Washington Post Company
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
3.01(h)(iv) of the Credit Agreement, dated as of March 17, 1998 (the "Credit
Agreement"), among The Washington Post Company (the "Borrower"), the Lenders
parties thereto, Citibank, N.A., as Agent for said Lenders, and Wachovia Bank,
N.A., as Co-Agent. Terms defined in the Credit Agreement are used herein as
therein defined.
I am the General Counsel of the Borrower and as such I am
familiar with the Credit Agreement and the corporate proceedings taken by the
Borrower to authorize the execution and delivery of the Credit Agreement.
For purposes of this opinion, I have examined:
(1) The Credit Agreement.
(2) The documents furnished by the Borrower pursuant to
Article III of the Credit Agreement.
(3) The Certificate of Incorporation of the Borrower and all
amendments thereto (the "Charter").
(4) The by-laws of the Borrower and all amendments thereto
(the "By-laws").
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(5) A certificate of the Secretary of State of Delaware, dated
________ __, 199[8], attesting to the continued corporate existence and good
standing of the Borrower in that State.
In addition, I have examined the originals, or copies
certified to my satisfaction, of such other corporate records of the Borrower,
certificates of public officials and of officers of the Borrower, and
agreements, instruments and other documents, as I have deemed necessary as a
basis for the opinions expressed below. As to questions of fact material to such
opinions, I have, when relevant facts were not independently established by me,
relied upon certificates of the Borrower or its officers or of public officials.
I have assumed the due execution and delivery, pursuant to due authorization, of
the Credit Agreement by the Initial Lenders, the Agent and the Co-Agent.
My opinions expressed below 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 of America.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the following opinion:
1. The Borrower is a corporation validly existing and in good
standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the Borrower of
the Credit Agreement and the Notes, and the consummation of the transactions
contemplated thereby, are within the Borrower's corporate powers, and have been
duly authorized by all necessary corporate action, and do not contravene (i) the
Charter or the By-laws or (ii) any law, rule or regulation applicable to the
Borrower (including, without limitation, Regulation X of the Board of Governors
of the Federal Reserve System) or (iii) to the best of my knowledge after
appropriate inquiry, (x) any contractual restriction or (y) any legal
restriction contained in orders, writs, judgments, awards, injunctions or
decrees applicable to the Borrower or its assets, in each case that affects or
purports to affect the Borrower's right to borrow money or the Borrower's
obligations under the Credit Agreement or Notes. The Credit Agreement and the
Notes delivered on the date hereof have been duly executed and delivered on
behalf of the Borrower.
3. No authorization, approval or other action by, and no
notice to or filing with, any United States Federal, New York or, to the extent
required under the General Corporation Law of the State of Delaware, Delaware
governmental authority or regulatory body is required for the due execution,
delivery and performance by the Borrower of the Credit Agreement and the Notes.
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4. The Credit Agreement is, and when executed and delivered in
connection with Borrowings, the Notes will be, legal, valid and binding
obligations of the Borrower enforceable against the Borrower in accordance with
their respective terms.
5. To the best of my knowledge after appropriate inquiry,
there are no pending or overtly threatened actions or proceedings against the
Borrower or any of its Subsidiaries before any court, governmental agency or
arbitrator that purport to affect the legality, validity, binding effect or
enforceability of the Credit Agreement or any of the Notes 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 Borrower and
its Subsidiaries taken as a whole.
The opinions set forth above are subject to the following qualifications:
(a) My opinion in paragraph 4 above as to enforceability is
subject to the effect of any applicable bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar law affecting creditors' rights generally.
(b) My opinion is paragraph 4 above as to enforceability is
subject to the effect of general principles if equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at law).
(c) Insofar as provisions contained in the Credit Agreement
provide for indemnification, the enforceability thereof may be limited by public
policy considerations.
(d) I express no opinion as to (i) Section 2.15 of the Credit
Agreement insofar as it provides that any Lender purchasing a participation from
another Lender pursuant thereto may exercise set-off of similar rights with
respect to such participation and (ii) the effect of the law of any jurisdiction
other than the State of New York wherein any Lender may be located or wherein
enforcement of the Credit Agreement or the Notes may be sought that limits the
rates of interest legally chargeable or collectible.
Very truly yours,
