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EXHIBIT 4.2
CONFORMED COPY
FIVE-YEAR CREDIT AGREEMENT
dated as of
September 11, 2000
among
THE DUN & BRADSTREET CORPORATION
(to be renamed Moody's Corporation)
The Borrowing Subsidiaries Party Hereto
The Lenders Party Hereto
THE CHASE MANHATTAN BANK,
as Administrative Agent,
CITIBANK, N.A.,
as Syndication Agent,
and
THE BANK OF NEW YORK,
as Documentation Agent
$80,000,000 REVOLVING CREDIT AND COMPETITIVE ADVANCE
FACILITY
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Defined Terms............................................... 1
SECTION 1.02. Classification of Loans and Borrowings...................... 23
SECTION 1.03. Terms Generally............................................. 23
SECTION 1.04. Accounting Terms; GAAP...................................... 24
SECTION 1.05. Exchange Rates.............................................. 24
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments................................................. 25
SECTION 2.02. Loans and Borrowings........................................ 25
SECTION 2.03. Requests for Revolving Borrowings........................... 27
SECTION 2.04. Competitive Bid Procedure................................... 28
SECTION 2.05. Swingline Loans............................................. 31
SECTION 2.06. Funding of Borrowings....................................... 32
SECTION 2.07. Interest Elections.......................................... 33
SECTION 2.08. Termination, Reduction and Increase of Commitments.......... 35
SECTION 2.09. Repayment of Loans; Evidence of Debt........................ 37
SECTION 2.10. Prepayment of Loans......................................... 38
SECTION 2.11. Fees........................................................ 39
SECTION 2.12. Interest.................................................... 40
SECTION 2.13. Alternate Rate of Interest.................................. 41
SECTION 2.14. Increased Costs............................................. 42
SECTION 2.15. Break Funding Payments...................................... 44
SECTION 2.16. Taxes....................................................... 44
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-
offs........................................................ 46
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.............. 48
SECTION 2.19. Borrowing Subsidiaries...................................... 49
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers........................................ 50
SECTION 3.02. Authorization; Enforceability............................... 50
SECTION 3.03. Governmental Approvals; No Conflicts........................ 50
SECTION 3.04. Financial Condition; No Material Adverse Change............. 51
SECTION 3.05. Properties.................................................. 52
SECTION 3.06. Litigation and Environmental Matters........................ 52
SECTION 3.07. Compliance with Laws and Agreements......................... 53
SECTION 3.08. Investment and Holding Company Status....................... 53
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SECTION 3.09. Taxes....................................................... 53
SECTION 3.10. ERISA....................................................... 53
SECTION 3.11. Disclosure.................................................. 53
SECTION 3.12. Subsidiaries................................................ 54
SECTION 3.13. Use of Proceeds............................................. 54
SECTION 3.14. Solvency.................................................... 54
SECTION 3.15. Representation and Warranties Related to New D&B and
the Spin-off................................................ 54
ARTICLE 4
CONDITIONS
SECTION 4.01. Effective Date.............................................. 55
SECTION 4.02. Each Credit Event........................................... 57
SECTION 4.03. Each Borrowing Subsidiary Credit Event...................... 58
ARTICLE 5
AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Statements and Other Information.................. 58
SECTION 5.02. Notices of Material Events.................................. 60
SECTION 5.03. Existence; Conduct of Business.............................. 60
SECTION 5.04. Payment of Obligations...................................... 60
SECTION 5.05. Maintenance of Properties; Insurance........................ 61
SECTION 5.06. Books and Records; Inspection Rights........................ 61
SECTION 5.07. Compliance with Laws........................................ 61
SECTION 5.08. Use of Proceeds............................................. 61
ARTICLE 6
NEGATIVE COVENANTS
SECTION 6.01. Liens....................................................... 62
SECTION 6.02. Fundamental Changes......................................... 63
SECTION 6.03. Transactions with Affiliates................................ 65
SECTION 6.04. Sale and Lease-Back Transactions............................ 65
SECTION 6.05. Total Debt to EBITDA Ratio.................................. 65
SECTION 6.06. Interest Coverage Ratio..................................... 65
SECTION 6.07. Amendment of Spin-off Documents............................. 65
ARTICLE 7
EVENTS OF DEFAULT
ARTICLE 8
THE ADMINISTRATIVE AGENT
ARTICLE 9
GUARANTEE
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Notices.................................................... 73
SECTION 10.02. Waivers; Amendments........................................ 74
SECTION 10.03. Expenses; Indemnity; Damage Waiver......................... 75
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SECTION 10.04. Successors and Assigns..................................... 77
SECTION 10.05. Survival................................................... 81
SECTION 10.06. Counterparts; Integration; Effectiveness................... 81
SECTION 10.07. Severability............................................... 81
SECTION 10.08. Right of Setoff............................................ 82
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of
Process.................................................... 82
SECTION 10.10. Waiver of Jury Trial....................................... 83
SECTION 10.11. Headings................................................... 83
SECTION 10.12. Confidentiality............................................ 83
SECTION 10.13. Interest Rate Limitation................................... 84
SECTION 10.14. Conversion of Currencies................................... 84
SECTION 10.15. European Economic and Monetary Union....................... 85
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SCHEDULES:
Schedule 1 -- Pro Forma Financial Statements
Schedule 2.01(a) -- Lenders and Facility Commitments
Schedule 2.01(b) -- Designated Currency Lenders and Designated Currency
Commitments
Schedule 2.01(c) -- Yen Lenders and Yen Commitments
Schedule 2.17 -- Payments on Multicurrency Loans
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 6.01 -- Existing Liens
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Company's Counsel
Exhibit B-2 -- Form of Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx
Exhibit C -- Form of Opinion of Borrowing Subsidiary's Counsel
Exhibit D -- Form of Borrowing Subsidiary Agreement
Exhibit E -- Form of Borrowing Subsidiary Termination
Exhibit F -- Form of Statement Relating to Tax Status
Exhibit G -- Form of Assumption Agreement
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CREDIT AGREEMENT dated as of September 11, 2000, among THE DUN &
BRADSTREET CORPORATION (to be renamed Moody's Corporation), the BORROWING
SUBSIDIARIES party hereto, the LENDERS party hereto, THE CHASE MANHATTAN BANK,
as Administrative Agent, CITIBANK, N.A., as Syndication Agent, and THE BANK OF
NEW YORK, as Documentation Agent.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Acceptable Insurer" means (i) Lloyd's of London, so long as it is
rated at least 3 crowns by Standard & Poor's Rating Services, (ii) an insurance
company having an A.M. Best rating of "A" or better and being in a financial
size category of IX or larger (as such category is defined on the date hereof)
or (iii) an insurance company otherwise reasonably acceptable to the
Administrative Agent.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. No SPC of
any Lender shall be an Affiliate of such Lender.
"Aggregate Utilization Percentage" means, on any date, the percentage
equal to a fraction, the numerator of which is the aggregate principal amount of
the Revolving Credit Exposures of all Lenders and the denominator of which is
the aggregate amount of Facility Commitments on such date of determination;
provided that, if any Revolving Credit Exposures remain outstanding and the
Facility Commitments shall have been terminated, the Aggregate Utilization
Percentage on and after such date shall be deemed to be in excess of 33%.
"Agreement Currency" has the meaning assigned to such term in
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Section 10.14.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Agent" means, (a) with respect to a Loan or Borrowing
denominated in dollars, the Administrative Agent, (b) with respect to a Loan or
Borrowing denominated in Sterling, the London Agent, or (c) with respect to a
Loan or Borrowing denominated in any particular Eligible Currency, such other
Person as may be agreed upon by the Company and the Administrative Agent and
designated in a notice delivered to the Lenders.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Available Facility Commitments represented by such
Lender's Available Facility Commitment. If the Facility Commitments have
terminated or expired, the Applicable Percentages shall be determined based upon
the Facility Commitments most recently in effect, giving effect to any
assignments.
"Applicable Rate" means, for any day, with respect to any Eurocurrency
Revolving Loan, or with respect to the facility fees payable pursuant to Section
2.11, as the case may be, the applicable rate per annum set forth below under
the caption "Eurocurrency Spread" or "Facility Fee Rate", as the case may be,
based upon the Total Debt to EBITDA Ratio, as of the most recent determination
date referred to below:
CATEGORY 1 CATEGORY 2 CATEGORY 3 CATEGORY 4 CATEGORY 5
---------- ---------- ---------- ---------- ----------
TOTAL DEBT TO R Less 0.5:1 Less than or = R 0.75:1 than or = R 1.5:1 than or = R R Greater
EBITDA RATIO ("R"): than 0.5:1 Less than 0.75:1 Less than 1.5:1 than or 2.0:1 than = 2.0:1
FACILITY FEE RATE .070% .080% .090% .100% .125%
EUROCURRENCY SPREAD .180% .220% .285% .400% .500%
; provided that from the Effective Date to but excluding March 11, 2001, the
Applicable Rate shall be the rate set forth in Category 3. For purposes of the
foregoing, (i) the Total Debt to EBITDA Ratio shall be determined as of the end
of each fiscal quarter of the Company's fiscal year based upon the Company's
consolidated financial statements delivered pursuant to Section 5.01(a) or
5.01(b) and (ii) each change in the Applicable Rate resulting from a change in
the Total Debt to EBITDA Ratio shall be effective during the period commencing
on and including the date of delivery to the Administrative Agent of such
consolidated
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statements indicating such change and ending on the date immediately preceding
the effective date of the next such change; provided, that if the Company fails
to deliver the consolidated financial statements required to be delivered by it
pursuant to Section 5.01(a) or (b), the Applicable Rate shall be determined by
reference to the Category next above the Category then in effect until the
resultant Default shall become an Event of Default, at which time the Applicable
Rate shall be deemed to be Category 5 until such financial statements shall have
been delivered.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form approved by the Administrative Agent.
"Assumption Agreement" has the meaning set forth in Section 2.08(d).
"Available Facility Commitment" means, with respect to any Lender at
any time, an amount equal to such Lender's Facility Commitment at such time
minus such Lender's Funded Revolving Credit Exposure at such time. If the
Facility Commitments have terminated or expired, the Available Facility
Commitments shall be determined based upon the Facility Commitments most
recently in effect, giving effect to any assignments.
"Availability Period" means with respect to the Facility Commitments,
the Designated Currency Commitments or the Yen Commitments, as the case may be,
the period from and including the Effective Date to but excluding the earlier of
the Maturity Date and the date of termination of the Facility Commitments, the
Designated Currency Commitments or the Yen Commitments, respectively, pursuant
to Section 2.08 or Article 7.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means the Company or any Borrowing Subsidiary.
"Borrowing" means (a) Revolving Loans of the same Type and currency,
made, converted or continued on the same date and, in the case of Eurocurrency
Loans, as to which a single Interest Period is in effect, (b) a Competitive Loan
or group of Competitive Loans of the same Type made on the same date and as to
which a single Interest Period is in effect or (c) a Swingline Loan.
"Borrowing Date" means any Business Day specified in a notice pursuant
to Section 2.03, 2.04 or 2.05 as a date on which the relevant Borrower requests
Loans to be made hereunder.
"Borrowing Minimum" means (a) in the case of a Borrowing denominated
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in dollars, $5,000,000 and (b) in the case of a Borrowing denominated in any
Eligible Currency, the smallest amount of such Eligible Currency that (i) is an
integral multiple of 1,000,000 units (or, in the case of Pounds Sterling,
500,000 units) of such currency and (ii) has a Dollar Equivalent in excess of
$5,000,000.
"Borrowing Multiple" means (a) in the case of a Borrowing denominated
in dollars, $1,000,000 and (b) in the case of a Borrowing denominated in any
Eligible Currency, 1,000,000 units (or, in the case of Pounds Sterling, 500,000
units) of such currency.
"Borrowing Request" means a request for a Revolving Borrowing in
accordance with Section 2.03.
"Borrowing Subsidiary" means, at any time, any Subsidiary of the
Company designated as a Borrowing Subsidiary by the Company pursuant to Section
2.19 that has not ceased to be a Borrowing Subsidiary pursuant to such Section
or Article 7.
"Borrowing Subsidiary Agreement" means a Borrowing Subsidiary Agreement
substantially in the form of Exhibit D.
"Borrowing Subsidiary Termination" means a Borrowing Subsidiary
Termination substantially in the form of Exhibit E.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that (i) when used in connection with a Eurocurrency
Loan, the term "Business Day" shall also exclude any day on which banks are not
open for dealings in deposits in the applicable currency in the London interbank
market, (ii) when such term is used in connection with a Revolving Designated
Currency Loan comprised of Euros, references to "Business Day" shall be deemed
to be references to any Target Operating Day on which banks are open for general
banking business in the jurisdiction of the relevant funding office of the
designated Applicable Agent and (iii) when used in connection with notices or
payments to or from an Applicable Agent, such term shall also exclude any day on
which the Applicable Agent is not open.
"Calculation Date" means the last Business Day of each calendar month
and such other Business Days during such calendar month as may be notified by
the Company to the Administrative Agent, provided that there shall be no more
than three Calculation Dates in any calendar month.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases
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on a balance sheet of such Person under GAAP, and the amount of such obligations
shall be the capitalized amount thereof determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than 30% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Company; or (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Company by Persons who were not (i) nominated by the board of directors of the
Company, (ii) appointed in connection with the Spin-off or (iii) appointed by
directors so nominated or appointed.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.14(c), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Dollar
Loans, Revolving Designated Currency Loans, Revolving Yen Loans, Competitive
Loans or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means a Facility Commitment, a Designated Currency
Commitment or a Yen Commitment.
"Company" means The Dun & Bradstreet Corporation, a Delaware
corporation (which will be renamed Moody's Corporation in connection with the
Spin-off), and its successors.
"Competitive Bid" means an offer by a Lender to make a Competitive Loan
in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
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"Competitive Bid Request" means a request for Competitive Bids in
accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Competitive Loan Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Competitive
Loans (or the Dollar Equivalent thereof in the case of a Competitive Loan in an
Eligible Currency) at such time.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Designated Currency" means Pounds Sterling, Euros and any other
Eligible Currency that shall be designated by the Company in a notice delivered
to the Administrative Agent and approved by the Administrative Agent and all the
Designated Currency Lenders as a Designated Currency. The Company may specify in
any notice delivered to the Administrative Agent with respect to the designation
of any Eligible Currency one or more locations from which a Borrower may make
payments of principal of or interest on any Multicurrency Loans in such Eligible
Currency. Subject to the approval of the Administrative Agent and all the
Designated Currency Lenders, Schedule 2.17 shall be deemed to have been amended
to add each such location for payments with respect to Multicurrency Loans in
such Eligible Currency (but not any other Loans).
"Designated Currency Commitment" means, with respect to each Designated
Currency Lender, the commitment of such Designated Currency Lender to make
Revolving Designated Currency Loans, expressed as an amount representing the
maximum aggregate Dollar Equivalents of the principal amounts of such Designated
Currency Lender's outstanding Revolving Designated Currency Loans that may be
outstanding after giving effect to any such Revolving Designated Currency Loans,
as such commitment may be (a) reduced from time to time pursuant to Section 2.08
and (b) reduced or increased from time to time pursuant to assignments by or to
such Designated Currency Lender pursuant to Section 10.04(b). The initial amount
of each Designated Currency Lender's Designated Currency Commitment is set forth
on Schedule 2.01(b) or in the Assignment and Acceptance pursuant to which such
Designated Currency Lender shall have assumed its Designated Currency
Commitment, as applicable.
"Designated Currency Lenders" means the Persons listed on Schedule
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2.01(b) and any other Person that shall have become a Designated Currency Lender
pursuant to any Assignment and Acceptance, other than a Person that ceases to be
a Designated Currency Lender pursuant to an Assignment and Acceptance.
"Designated Subsidiary" means (i) Moody's Investor's Services, Inc., a
Delaware corporation, and (ii) any other Subsidiary designated as a "Designated
Subsidiary" by the Company.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"Distribution Agreement" means the Distribution Agreement between New
D&B and the Company, substantially in the form set forth as Exhibit 10.1 to the
Information Statement.
"dollars" or "$" refers to lawful money of the United States of
America.
"Dollar Equivalent" means, on any date of determination, with respect
to any amount in any Eligible Currency, the equivalent in dollars of such
amount, determined by the Administrative Agent pursuant to Section 1.05(a) using
the Exchange Rate with respect to such Eligible Currency then in effect.
"Domestic Borrowing Subsidiary" means any Borrowing Subsidiary
organized under the laws of any jurisdiction in the United States.
"EBITDA" means, for any period, the consolidated net income of the
Company and its consolidated Subsidiaries for such period plus, to the extent
deducted in computing such consolidated net income for such period, the sum
(without duplication) of (a) income tax expense, (b) Interest Expense, (c)
depreciation and amortization expense, (d) extraordinary losses and (e)
transaction costs recorded in the fiscal year 2000 as a result of the Spin-off
in an aggregate amount not to exceed $30,000,000, and minus, to the extent added
in computing such consolidated net income for such period the sum (without
duplication) of extraordinary gains. "EBITDA" for any fiscal quarter ended prior
to September 30, 2000 shall be determined on the basis of the pro forma
statements of operations of the Company set forth on Schedule 1 and "EBITDA"
for any other fiscal quarter ended prior to the Spin-off Date or during which
the Spin-off Date occurs shall be determined on the basis of the financial
statements for such fiscal quarter delivered by the Company to the Lenders
pursuant to Section 5.01(a) or (b) and prepared in accordance therewith and
calculated as if the Spin-off had occurred on the first day of such fiscal
quarter.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 10.02).
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"Eligible Currency" means at any time any Designated Currency, Yen or
any other currency (other than dollars) that is freely tradeable and
exchangeable into dollars in the London market and for which the Administrative
Agent can determine an Exchange Rate.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Company or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Company or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Company or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Company or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
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concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Euro" has the meaning assigned to the term "euro" in Section 10.15(a).
"Eurocurrency", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article 7.
"Exchange Rate" means, on any day, with respect to any Eligible
Currency, the rate at which such Eligible Currency may be exchanged into dollars
(and, for purposes of any provision of this Agreement requiring or permitting
the conversion of Multicurrency Loans to dollar Loans, the rate at which dollars
may be exchanged into the applicable Eligible Currency), as set forth at or
about 9:00 a.m., New York City time, or at or about 11:00 a.m., London time, on
such date on Reuters page FX, WRLD, for such currency. In the event that such
rate does not appear on Reuters page FX, WRLD, the Exchange Rate shall be
determined by reference to such other publicly available service for displaying
exchange rates as may be agreed upon by the Applicable Agent and the Company,
or, in the absence of such agreement, such Exchange Rate shall instead be the
arithmetic average of the spot rates of exchange quoted to the Applicable Agent
in the market where its foreign currency exchange operations in respect of such
currency are then being conducted, on or about 11:00 a.m., New York City time,
or on or about 11:00 a.m., London time, on such date for the purchase of dollars
(or such foreign currency, as the case may be) for delivery two Business Days
later; provided that if at the time of any such determination, for any reason,
no such spot rate is being quoted, the Applicable Agent, after consultation with
the Company, may use any reasonable method it deems appropriate to determine
such rate, and such determination shall be presumed correct absent manifest
error.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of any Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income (including branch profits or similar taxes)
imposed as a result of a present or former connection between such Lender or the
Administrative Agent and the Governmental Authority imposing such tax (other
than any such connection arising solely from such Lender or the Administrative
Agent having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement) and (b) in the case of a Foreign
Lender, any withholding tax that is imposed on amounts payable to such Foreign
Lender to the extent they are in effect and would apply as of the date such
Foreign
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Lender becomes a party to this Agreement or designates a new lending office
(including withholding taxes that would be imposed on payments made by a
Borrowing Subsidiary the Relevant Jurisdiction with respect to which is the
United Kingdom, regardless of whether the Company has designated such a
Borrowing Subsidiary) (other than with respect to any Foreign Lender that is a
Foreign Lender with respect to any Borrowing Subsidiary that is designated after
the date of this Agreement (other than a Borrowing Subsidiary the Relevant
Jurisdiction with respect to which is United Kingdom)), or that is attributable
to such Foreign Lender's failure to comply with Section 2.16(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the applicable Borrower with respect to such withholding
tax pursuant to Section 2.16(a).
"Existing Credit Agreements" means (i) the Multi-Year Revolving Credit
and Competitive Advance Facility dated as of June 9, 1998 among the Company, the
borrowing subsidiaries party thereto, the lenders party thereto, The Chase
Manhattan Bank, as administrative agent, Citibank, N.A., as syndication agent,
and Xxxxxx Guaranty Trust Company of New York, as documentation agent, and (ii)
the 364-Day Revolving Credit and Competitive Advance Facility dated as of June
9, 1998 and amended and restated as of June 2, 2000 among the Company, the
borrowing subsidiaries party thereto, the lenders party thereto, The Chase
Manhattan Bank, as administrative agent, Citibank, N.A., as syndication agent,
and The Bank of New York, as documentation agent, each as in effect immediately
prior to the Effective Date.
"Facility Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and to acquire participations
in Swingline Loans hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced or increased from time to time pursuant to Section
2.08 and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 10.04. The initial amount of each Lender's
Facility Commitment is set forth on Schedule 2.01(a), or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Facility
Commitment, as applicable. The initial aggregate amount of the Facility
Commitments is $80,000,000.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding 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 (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing
16
selected by it.
"Financial Officer" of any Person means the chief financial officer,
principal accounting officer, treasurer or controller of such Person.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
Eurocurrency Competitive Loan), the fixed rate of interest per annum specified
by the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
Rate.
"Foreign Lender" means, with respect to any Loan, any Lender making
such Loan that is organized under the laws of a jurisdiction other than the
Relevant Jurisdiction.
"Funded Revolving Credit Exposure" means, with respect to any Lender at
any time, the sum at such time, without duplication, of (a) the aggregate
principal amount at such time of the outstanding Revolving Dollar Loans of such
Lender, (b) the Dollar Equivalent of the aggregate principal amount of the
outstanding Revolving Yen Loans of such Lender, (c) the aggregate amount of the
Dollar Equivalents of the principal amounts of the outstanding Revolving
Designated Currency Loans of such Lender and (d) that portion of such Lender's
Swingline Exposure attributable to Swingline Loans in respect of which such
Lender has made (or is required to have made) payments to the Swingline Lender
pursuant to Section 2.05(c).
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other Person (the "primary
obligor"), whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation or
to purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation
of the payment thereof, (c) to maintain working capital, equity capital or any
other financial
17
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other obligation or (d) as an
account party in respect of any letter of credit or letter of guaranty issued to
support such Indebtedness or obligation; provided, that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (e) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing unconditional right to be secured by) any Lien
on property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed (the amount of any Indebtedness resulting from
this clause (e) shall be equal to the lesser of (i) the amount secured by such
Lien and (ii) the fair market value of the property subject to such Lien as
determined in good faith by such Person), (f) all Guarantees by such Person of
Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty issued by banks or other
financial institutions and (i) all obligations, contingent or otherwise, of such
Person in respect of bankers' acceptances created for the account of such
Person. The Indebtedness of any Person shall include the Indebtedness of any
other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Information Memorandum" means the Confidential Information
18
Memorandum dated August, 2000 relating to the Company and the Transactions.
"Information Statement" means the Preliminary Information Statement of
New D&B and the Company dated June 27, 2000, as amended by Form 10/A-1 dated
August 17, 2000 and as further amended or supplemented from time to time;
provided that no such further material amendment or supplement of any term
thereof shall be effective for purposes of references thereto in this Agreement
unless approved in writing by the Required Lenders.
"Interest Coverage Ratio" means, for any period, the ratio of (a)
EBITDA for such period to (b) Interest Expense for such period.
"Interest Election Request" means a request by the relevant Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.07.
"Interest Expense" means, for any period, (x) the interest expense of
the Company and its consolidated Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP and including (i) the amortization of
debt discounts to the extent included in interest expense in accordance with
GAAP, (ii) the amortization of all fees (including fees with respect to Hedging
Agreements) payable in connection with the incurrence of Indebtedness to the
extent included in interest expense in accordance with GAAP, and (iii) the
portion of any rents payable under capital leases allocable to interest expense
in accordance with GAAP minus (y) the interest income of the Company and its
consolidated Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP. "Interest Expense" for any fiscal quarter ended prior to
September 30, 2000 shall be determined on the basis of the pro forma financial
statements of the Company set forth on Schedule 1 and "Interest Expense" for any
other fiscal quarter ended prior to the Spin-off Date or during which the
Spin-off Date occurs shall be determined on the basis of the financial
statements for such fiscal quarter delivered by the Company to the Lenders
pursuant to Section 5.01(a) or (b) and prepared in accordance therewith and
calculated as if the Spin-off had occurred on the first day of such fiscal
quarter.
"Interest Payment Date" means (a) with respect to any ABR Loan (other
than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurocurrency Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurocurrency Borrowing with an Interest Period of more than three
months' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration after the first day of such
Interest Period, (c) with respect to any Fixed Rate Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Fixed Rate Borrowing with an Interest Period of more than 90 days'
duration (unless otherwise specified in the applicable Competitive Bid Request),
each day prior to the last day of such Interest Period that occurs at intervals
of 90 days' duration
19
after the first day of such Interest Period, and any other dates that are
specified in the applicable Competitive Bid Request as Interest Payment Dates
with respect to such Borrowing and (d) with respect to any Swingline Loan, the
day that such Loan is required to be repaid.
"Interest Period" means (a) with respect to any Eurocurrency Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the relevant Borrower may elect and (b) with respect
to any Fixed Rate Borrowing, the period (which shall not be less than one day or
more than 360 days) commencing on the date of such Borrowing and ending on the
date specified in the applicable Competitive Bid Request; provided, that (i) if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurocurrency Borrowing only, such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a
Eurocurrency Borrowing that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made
and, in the case of a Revolving Borrowing, thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
"IRS Ruling" has the meaning set forth in Section 4.01(h).
"Judgment Currency" has the meaning assigned to such term in
Section 10.14.
"Lenders" means the Persons listed on Schedule 2.01(a) and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the
term "Lenders" includes the Swingline Lender.
"LIBO Rate" means, with respect to any Eurocurrency Borrowing for any
Interest Period, the rate appearing on Page 3750 (or, in the case of a
Multicurrency Borrowing, the rate appearing on the Page for the applicable
Eligible Currency) of the Dow Xxxxx Markets Service (or on any successor or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Administrative Agent in
consultation with the Company from time to time for purposes of providing
quotations of interest rates applicable to dollar deposits (or, in the case of a
Multicurrency Borrowing, deposits in the applicable Eligible Currency) in the
London interbank market) at approximately
20
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for dollar deposits (or the applicable Eligible
Currency) with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO Rate"
with respect to such Eurocurrency Borrowing for such Interest Period shall be
the rate at which the Administrative Agent is offered dollar deposits of
$5,000,000 (or, in the case of a Multicurrency Borrowing, deposits in the
applicable Eligible Currency in an amount the Dollar Equivalent of which is
approximately equal to $5,000,000) and for a maturity comparable to such
Interest Period in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any asset of any Person, (a) any
mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or
security interest in, on or of such asset of any Person, for the purpose of
securing any obligation of such Person or any other Person, and (b) the interest
of a vendor or a lessor under any conditional sale agreement, capital lease or
title retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset.
"Loans" means the loans made by the Lenders to the Borrowers pursuant
to this Agreement.
"London Agent" means Chase Manhattan International Limited.
"Margin" means, with respect to any Competitive Loan bearing interest
at a rate based on the LIBO Rate, the marginal rate of interest, if any, to be
added to or subtracted from the LIBO Rate to determine the rate of interest
applicable to such Loan, as specified by the Lender making such Loan in its
related Competitive Bid.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or financial condition of the Company and the
Subsidiaries taken as a whole, (b) the ability of the Company to perform any of
its payment obligations under this Agreement or (c) the rights of or benefits
available to the Lenders under this Agreement.
"Material Indebtedness" means Indebtedness (other than the Loans), or
obligations in respect of one or more Hedging Agreements, of the Company and its
Subsidiaries in an aggregate principal amount exceeding $30,000,000. For
purposes of determining Material Indebtedness, the "principal amount" of the
obligations of the Company or any Subsidiary in respect of any Hedging Agreement
at any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that the Company or such Subsidiary would be required
21
to pay if such Hedging Agreement were terminated at such time.
"Material Subsidiary" means any Borrowing Subsidiary and any Subsidiary
(a) the Total Assets of which exceed 10% of the Total Assets of the Company and
its consolidated Subsidiaries as of the end of the most recently completed
fiscal year or (b) the Net Revenue of which exceeds 10% of the Net Revenue of
the Company and its consolidated Subsidiaries as of the end of the most recently
completed fiscal year, provided that (i) any Subsidiary that directly or
indirectly owns a Material Subsidiary shall itself be a Material Subsidiary and
(ii) in the event Subsidiaries that would otherwise not be Material Subsidiaries
shall in the aggregate account for a percentage in excess of 15% of the Total
Assets or 15% of the Net Revenue of the Company and its consolidated
Subsidiaries as of the end of the most recently completed fiscal year, then one
or more of such Subsidiaries designated by the Company (or, if the Company shall
make no designation, one or more of such Subsidiaries in descending order based
on their respective contributions to such determination of Total Assets), shall
be included as Material Subsidiaries to the extent necessary to eliminate such
excess.
"Maturity Date" means September 11, 2005 (or, if such day if not a
Business Day, the next succeeding Business Day).
"Moody's" means Xxxxx'x Investors Services, Inc.
"Moody's Assets" has the meaning set forth in the Distribution
Agreement.
"Multicurrency Borrowing" means a Borrowing comprised of
Multicurrency Loans.
"Multicurrency Loan" means a Revolving Loan denominated in Yen or in a
Designated Currency or a Competitive Loan in an Eligible Currency.
"Multicurrency Lender" means any Lender of a Multicurrency Loan.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Revenue" means, with respect to any Person for any period, the net
revenue of such Person and its consolidated subsidiaries, determined on a
consolidated basis in accordance with GAAP for such period.
"New D&B" means The New D&B Corporation, a Delaware corporation (which
will be renamed The Dun & Bradstreet Corporation in connection with the
Spin-off), and its successors.
"New D&B Assets" has the meaning set forth in the Distribution
Agreement.
22
"Obligations" means the obligations of each of the Borrowing
Subsidiaries under this Agreement and the Borrowing Subsidiary Agreements with
respect to the payment of (i) the principal of and interest on the Loans to each
such Borrowing Subsidiary when and as due, whether at maturity, by acceleration,
upon one or more dates set for prepayment or otherwise and (ii) all other
monetary obligations of each of the Borrowing Subsidiaries hereunder and
thereunder.
"Other Credit Agreement" means the 364-Day Revolving Credit and
Competitive Advance Facility dated as of September 11, 2000 among the Company,
the borrowing subsidiaries party thereto, the lenders party thereto, The Chase
Manhattan Bank, as administrative agent, Citibank, N.A., as syndication agent,
and The Bank of New York, as documentation agent, as amended from time to time.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet delinquent or are
being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, landlords',
repairmen's and other like Liens imposed by law, arising in the ordinary course
of business and securing obligations that are not overdue by more than 60 days
or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business and deposits securing liabilities to insurance carriers under insurance
or self-insurance arrangements; and
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the ordinary
conduct of business of
23
the Company or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Company or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Register" has the meaning set forth in Section 10.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Relevant Jurisdiction" means (i) in the case of any Loan to the
Company or any Domestic Borrowing Subsidiary, the United States of America, and
(ii) in the case of any Loan to any other Borrowing Subsidiary, the jurisdiction
imposing (or having the power to impose) withholding tax on payments by such
Borrowing Subsidiary under this Agreement.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing at least 51% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time; provided
that, for purposes of declaring the Loans to be due and payable pursuant to
Article 7, and for all purposes after the Loans become due and payable pursuant
to Article 7 or the Commitments expire or terminate, the total Competitive Loan
Exposures of the Lenders shall be included in their respective Revolving Credit
Exposures in determining the Required Lenders.
"Reset Date" has the meaning set forth in Section 1.05(a).
24
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans (or the Dollar Equivalent thereof, in the case of Multicurrency Loans) and
its Swingline Exposure at such time.
"Revolving Designated Currency Borrowing" means a Borrowing
comprised of Revolving Designated Currency Loans.
"Revolving Designated Currency Loans" means the Loans made pursuant to
Section 2.01(b) that are denominated in Designated Currencies.
"Revolving Dollar Borrowing" means a Borrowing comprised of
Revolving Dollar Loans.
"Revolving Dollar Loans" means Loans denominated in dollars and made
pursuant to Section 2.01(a). Each Revolving Dollar Loan shall be a Eurocurrency
Loan or an ABR Loan.
"Revolving Loans" means Revolving Dollar Loans, Revolving Yen Loans
and Revolving Designated Currency Loans.
"Revolving Yen Borrowing" means a Borrowing comprised of Revolving
Yen Loans.
"Revolving Yen Loans" means the Loans made pursuant to Section 2.01(c)
that are denominated in Yen.
"SPC" has the meaning set forth in Section 10.04(h).
"Spin-off" means all of the transactions contemplated by the
Information Statement and Article II of the Distribution Agreement to be
consummated on or prior to the Distribution Date (as defined therein), including
without limitation (i) the transfer by the Company to New D&B of all of the
Company's and its subsidiaries' right, title and interest in the New D&B Assets,
(ii) the transfer by New D&B and its subsidiaries to the Company and its
subsidiaries of all of New D&B's and its subsidiaries' right, title and interest
in the Moody's Assets, (iii) the execution, delivery and performance by each
party thereto of each Spin-off Document (other than the Information Statement)
and (iv) the Distribution (as defined in the Distribution Agreement).
"Spin-off Date" means the date of consummation of the Spin-off.
"Spin-off Documents" means (i) the Information Statement, (ii) the
Distribution Agreement and (iii) each Ancillary Agreement (as defined in the
Distribution Agreement) substantially in the form provided to the Lenders on
August 31, 2000.
25
"Statutory Reserve Rate" means, with respect to any Eligible Currency,
a fraction (expressed as a decimal), the numerator of which is the number one
and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by any Governmental
Authority of the jurisdiction of such currency (or any other jurisdiction in
which the funding operations of any Lender shall be conducted with respect to
any Eligible Currency) to which banks in such jurisdiction are subject for any
category of deposits or liabilities customarily used to fund loans in such
currency or by reference to which interest rates applicable to Loans in such
Eligible Currency are determined. Such reserve, liquid asset or similar
percentages shall, in the case of dollars, include those imposed pursuant to
Regulation D of the Board. Eurocurrency Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"Sterling" or "pound sterling" means the lawful money of the United
Kingdom.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or, in the case
of a partnership, more than 50% of the general partnership interests are, as of
such date, owned, controlled or held by the parent or one or more subsidiaries
of the parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Company.
"Successor Corporation" has the meaning set forth in Section 6.02(c).
"Swingline Exposure" means, at any time, the aggregate principal amount
of all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposures at such time.
"Swingline Lender" means The Chase Manhattan Bank, in its capacity as
lender of Swingline Loans hereunder.
26
"Swingline Loan" means a Loan in dollars made pursuant to Section 2.05.
"Target Operating Day" means any day that is not (a) a Saturday or
Sunday, (b) Christmas Day or New Year's Day or (c) any other day on which the
Trans-European Real-time Gross Settlement Operating System (or any successor
settlement system) is not operating (as determined by the Administrative Agent).
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Total Assets" means, at any date as to any Person, the total assets of
such Person and its consolidated subsidiaries at such date, determined on a
consolidated basis in accordance with GAAP.
"Total Debt" means, at any date all indebtedness of the Company and its
consolidated Subsidiaries at such date to the extent such items should be
reflected on the consolidated balance sheet of the Company (excluding any such
items which appear only in the notes to such consolidated balance sheet) at such
date in accordance with GAAP.
"Total Debt to EBITDA Ratio" means, at any time, the ratio of (a) Total
Debt at such time to (b) EBITDA for the most recent period of four consecutive
fiscal quarters of the Company ended at or prior to such time. Solely for
purposes of this definition, (i) if the Company or any of its consolidated
subsidiaries shall have completed an acquisition of all or a substantial part of
the assets, or a going concern business or division, of any Person, or (ii) if
the Company shall have merged with any Person during such period or (iii) the
Company or any of its consolidated subsidiaries shall have disposed of all or a
substantial part of its assets or a going concern business or division, in each
case, EBITDA for the relevant period shall be determined on a pro forma basis as
if such acquisition, disposition or merger, and the incurrence of any related
Indebtedness, had occurred on the first day of such period.
"Transactions" means the execution, delivery and performance by the
Borrowers of this Agreement and the Borrowing Subsidiary Agreements, the
borrowing of Loans, the use of the proceeds thereof described in Section 3.13
and the Spin-off.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the LIBO Rate, the Alternate Base Rate
or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed
Rate.
"Yen" or "(Y)" refers to the lawful money of Japan.
27
"Yen Commitment" means, with respect to each Yen Lender, the commitment
of such Yen Lender to make Revolving Yen Loans, expressed as an amount
representing the maximum aggregate Dollar Equivalent of the principal amount of
such Yen Lender's outstanding Revolving Yen Loans that may be outstanding after
giving effect to any such Revolving Yen Loan, as such commitment may be (a)
reduced from time to time pursuant to Section 2.08 and (b) reduced or increased
from time to time pursuant to assignments by or to such Yen Lender pursuant to
Section 10.04. The initial amount of each Yen Lender's Yen Commitment is set
forth on Schedule 2.01(c) or in the Assignment and Acceptance pursuant to which
such Yen Lender shall have assumed its Yen Commitment, as applicable.
"Yen Lenders" shall mean the Persons listed on Schedule 2.01(c) and any
other Person that shall become a Yen Lender pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a Yen Lender pursuant
to an Assignment and Acceptance.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type
(e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits
28
and Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement and (e) the words "asset" and
"property" shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
SECTION 1.05. Exchange Rates. (a) Not later than 1:00 p.m., New York
City time, on each Calculation Date, the Administrative Agent shall (i)
determine the Exchange Rate as of such Calculation Date with respect to each
Eligible Currency (A) in which any Lender or Lenders shall have extended a
commitment to make Loans or (B) in which any Loan or Loans shall be outstanding
and (ii) give notice thereof to the Lenders and the Company. The Exchange Rates
so determined shall become effective on the first Business Day immediately
following the relevant Calculation Date (a "Reset Date"), shall remain effective
until the next succeeding Reset Date, and shall for all purposes of this
Agreement (other than clause (i) of Section 2.13, Section 10.14 or any other
provision expressly requiring the use of a current Exchange Rate) be the
Exchange Rates employed in converting any amounts between dollars and Eligible
Currencies.
(b) Not later than 5:00 p.m., New York City time, on each Reset Date
and each Borrowing Date with respect to Multicurrency Loans, the Administrative
Agent shall (i) determine the Dollar Equivalent of the aggregate principal
amount of the Multicurrency Loans then outstanding (after giving effect to any
Multicurrency Loans to be made or repaid on such date) and (ii) notify the
Lenders and the Company of the results of such determination.
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments. (a) Subject to the terms and conditions set
forth herein, each Lender, severally and not jointly, agrees to make Revolving
29
Loans, denominated in dollars, to any Borrower from time to time during the
Availability Period for the Facility Commitments in an aggregate principal
amount that will not result in (i) such Lender's Revolving Credit Exposure
exceeding such Lender's Facility Commitment or (ii) the sum of the total
Revolving Credit Exposures plus the total Competitive Loan Exposures exceeding
the total Facility Commitments.
(b) Subject to the terms and conditions set forth herein, each
Designated Currency Lender agrees to make Loans denominated in any Designated
Currency to any Borrower from time to time during the Availability Period for
the Designated Currency Commitments in an aggregate principal amount that, after
giving effect to any requested Loan, will not result in (i) the aggregate amount
of the Dollar Equivalents of the principal amounts of the Revolving Designated
Currency Loans of any Designated Currency Lender exceeding such Lender's
Designated Currency Commitment, (ii) the aggregate amount of the Dollar
Equivalents of the principal amounts of all outstanding Revolving Designated
Currency Loans and Revolving Yen Loans exceeding $50,000,000, (iii) any Lender's
Revolving Credit Exposure exceeding such Lender's Facility Commitment or (iv)
the sum of the total Revolving Credit Exposures plus the total Competitive Loan
Exposures exceeding the total Facility Commitments.
(c) Subject to the terms and conditions set forth herein, each Yen
Lender agrees to make Loans denominated in Yen to any Borrower from time to time
during the Availability Period for the Yen Commitments in an aggregate principal
amount that, after giving effect to any requested Loan, will not result in (i)
the Dollar Equivalent of the aggregate principal amount of the Revolving Yen
Loans of any Yen Lender exceeding such Lender's Yen Commitment, (ii) the
aggregate amount of the Dollar Equivalents of the principal amounts of all
outstanding Revolving Designated Currency Loans and Revolving Yen Loans
exceeding $50,000,000, (iii) any Lender's Revolving Credit Exposure exceeding
such Lender's Facility Commitment or (iv) the sum of the total Revolving Credit
Exposures plus the total Competitive Loan Exposures exceeding the total Facility
Commitments.
(d) Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrowers may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Dollar Loan
shall be made as part of a Borrowing consisting of Revolving Loans denominated
in dollars and made by the Lenders ratably in accordance with their respective
Available Facility Commitments. Each Revolving Designated Currency Loan shall be
made as part of a Borrowing consisting of Revolving Loans denominated in the
same Designated Currency made by the Designated Currency Lenders ratably in
accordance with their respective Designated Currency Commitments. Each Revolving
Yen Loan shall be made as part of a Borrowing consisting of Revolving Loans
denominated in Yen and made by the Yen Lenders ratably in accordance with their
respective Yen Commitments. Each Competitive Loan
30
shall be made in accordance with the procedures set forth in Section 2.04. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments and Competitive Bids of the Lenders are several and no Lender shall
be responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, (i) each Revolving Dollar Borrowing shall
be comprised entirely of ABR Loans or Eurocurrency Loans as the applicable
Borrower may request in accordance herewith, (ii) each Revolving Designated
Currency Borrowing shall be comprised entirely of Eurocurrency Loans, (iii) each
Revolving Yen Borrowing shall be comprised entirely of Eurocurrency Loans and
(iv) each Competitive Borrowing shall be comprised entirely of Eurocurrency
Competitive Loans or Fixed Rate Loans as the applicable Borrower may request in
accordance herewith. Each Swingline Loan shall be an ABR Loan. Each Lender at
its option may make any Eurocurrency Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that (i) any
exercise of such option shall not affect the obligation of any Borrower to repay
such Loan in accordance with the terms of this Agreement and (ii) unless any
Borrower shall request that an Affiliate of a Lender make a Loan, a Lender may
not recover for any increased costs under Sections 2.14 or 2.16 incurred solely
as a result of an Affiliate of such Lender, rather than such Lender, making a
Loan, if, without economic disadvantage to, and consistent with the policies and
practices of, such Lender, such Loan could have been made in a manner that would
have avoided such increased costs under Section 2.14 or 2.16.
(c) At the commencement of each Interest Period for any Borrowing
(other than a Swingline Loan), such Borrowing shall be in an aggregate amount
that is at least equal to the Borrowing Minimum and an integral multiple equal
to the Borrowing Multiple; provided that (i) a Eurocurrency Revolving Borrowing
that is a Multicurrency Borrowing may be continued into a new Interest Period
pursuant to Section 2.07 without regard to the foregoing and (ii) an ABR
Revolving Dollar Borrowing may be in an aggregate amount that is equal to the
aggregate Available Facility Commitments. Each Swingline Loan shall be in an
amount that is an integral multiple of $100,000 and not less than $500,000.
Borrowings of more than one Type and Class may be outstanding at the same time;
provided that there shall not at any time be more than a total of twenty (but no
more than ten in any one currency) Eurocurrency Revolving Borrowings
outstanding.
(d) Notwithstanding any other provision of this Agreement, no Borrower
shall be entitled to request, or to elect to convert or continue, any Borrowing
if the Interest Period requested with respect thereto would end after the
Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving
Borrowing, a Borrower shall notify the Applicable Agent of such request by
telephone (a) in the case of a Eurocurrency Borrowing denominated in dollars,
not later than 11:00 a.m., New York City time, three Business Days before
31
the date of the proposed Borrowing, (b) in the case of an ABR Borrowing, not
later than 11:00 a.m., New York City time, on the same day as the proposed
Borrowing and (c) in the case of a Revolving Designated Currency Borrowing or a
Revolving Yen Borrowing, not later than 10:00 a.m., London time, three Business
Days before the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Applicable Agent of a written Borrowing Request in a form
approved by the Applicable Agent and signed by the applicable Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
(iv) in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Interest Period", and the currency of
such Borrowing, which shall be dollars, Yen or a Designated Currency;
and
(v) the location and number of the relevant Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06; and
(vi) in the case of a Borrowing in Yen or a Designated Currency, the
location from which payments of the principal and interest on such
Borrowing will be made, which will comply with the requirements of
Section 2.17.
If no election as to the Type of Revolving Dollar Borrowing is specified, then
the requested Revolving Dollar Borrowing shall be an ABR Borrowing. If no
currency is specified with respect to any requested Eurocurrency Revolving
Borrowing, then the relevant Borrower shall be deemed to have selected dollars.
If no Interest Period is specified with respect to any requested Eurocurrency
Revolving Borrowing, then the relevant Borrower shall be deemed to have selected
an Interest Period of one month's duration. Promptly following receipt of a
Borrowing Request in accordance with this Section, the Applicable Agent shall
advise each Lender of the details thereof and of the amount of such Lender's
Loan to be made as part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to the terms and
conditions set forth herein, from time to time during the Availability Period
any Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that the sum of the total Revolving Credit Exposures plus the total Competitive
Loan Exposures at any time shall not exceed the total Facility Commitments. To
request Competitive Bids, a Borrower shall notify the Applicable Agent of such
request by telephone, (i) in the case of a Eurocurrency Borrowing denominated in
dollars, not later than 11:00 a.m., New York City time, four Business Days
before
32
the date of the proposed Borrowing, (ii) in the case of a Eurocurrency Borrowing
denominated in an Eligible Currency, not later than 3:00 p.m., London time, four
Business Days before the date of the proposed Borrowing, (iii) in the case of a
Fixed Rate Borrowing denominated in dollars, not later than 10:00 a.m., New York
City time, one Business Day before the date of the proposed Borrowing and (iv)
in the case of a Fixed Rate Borrowing denominated in an Eligible Currency, not
later than 3:00 p.m., London time, four Business Days before the date of the
proposed Borrowing; provided that the Borrowers may submit jointly up to (but
not more than) three Competitive Bid Requests on the same day, but a Competitive
Bid Request shall not be made within five Business Days after the date of any
previous Competitive Bid Request, unless any and all such previous Competitive
Bid Requests shall have been withdrawn or all Competitive Bids received in
response thereto rejected. Each such telephonic Competitive Bid Request shall be
confirmed promptly by hand delivery or telecopy to the Applicable Agent of a
written Competitive Bid Request in a form approved by the Applicable Agent and
signed by the applicable Borrower. Each such telephonic and written Competitive
Bid Request shall specify the following information in compliance with Section
2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurocurrency Borrowing or a
Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period", and the currency of such Borrowing which shall be dollars or
an Eligible Currency; and
(v) the location and number of the relevant Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06; and
(vi) in the case of a Borrowing in Yen or a Designated Currency, the
location from which payments of the principal and interest on such
Borrowing will be made, which will comply with the requirements of
Section 2.17.
If no currency is specified with respect to any Competitive Bid Request, the
relevant Borrower shall be deemed to have selected dollars. Promptly following
receipt of a Competitive Bid Request in accordance with this Section, the
Applicable Agent shall notify the Lenders of the details thereof by telecopy,
inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to any Borrower in response to a Competitive Bid Request.
Each Competitive Bid by a Lender must be in a form reasonably approved by the
Applicable Agent and must be received by the Applicable Agent by telecopy, (i)
in the case of a Eurocurrency Competitive Borrowing denominated in dollars, not
later than 9:30 a.m., New York City time,
33
three Business Days before the proposed date of such Competitive Borrowing, (ii)
in the case of a Eurocurrency Competitive Borrowing denominated in an Eligible
Currency, not later than 3:00 p.m., London time, three Business Days before the
date of the proposed Competitive Borrowing, (iii) in the case of a Fixed Rate
Borrowing denominated in dollars, not later than 9:30 a.m., New York City time,
on the proposed date of such Competitive Borrowing and (iv) in the case of a
Fixed Rate Borrowing denominated in an Eligible Currency, not later than 3:00
p.m., London time, three Business Days before the date of the proposed
Competitive Borrowing. Competitive Bids that do not conform substantially to the
form approved by the Applicable Agent may be rejected by the Applicable Agent,
and the Applicable Agent shall notify the applicable Lender as promptly as
practicable. Each Competitive Bid shall specify (i) the principal amount (which
shall be in an amount that is at least equal to the Borrowing Minimum and an
integral multiple equal to the Borrowing Multiple, and which may equal the
entire principal amount of the Competitive Borrowing requested by the applicable
Borrower) of the Competitive Loan or Loans that the Lender is willing to make,
(ii) the Competitive Bid Rate or Rates at which the Lender is prepared to make
such Loan or Loans (expressed as a percentage rate per annum in the form of a
decimal to no more than four decimal places), (iii) the Interest Period
applicable to each such Loan and the last day thereof and (iv) the currency of
the Competitive Borrowing.
(c) The Applicable Agent shall promptly notify the relevant Borrower
by telecopy of the Competitive Bid Rate and the principal amount specified in
each Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, a Borrower may
accept or reject any Competitive Bid. The relevant Borrower shall notify the
Applicable Agent by telephone, confirmed by telecopy in a form reasonably
approved by the Applicable Agent, whether and to what extent it has decided to
accept or reject each Competitive Bid, (i) in the case of a Eurocurrency
Competitive Borrowing denominated in dollars, not later than 10:30 a.m., New
York City time, three Business Days before the date of the proposed Competitive
Borrowing, (ii) in the case of a Eurocurrency Competitive Borrowing denominated
in an Eligible Currency, not later than 4:00 p.m., London time, three Business
Days before the date of the proposed Competitive Borrowing, (iii) in the case of
a Fixed Rate Borrowing denominated in dollars, not later than 10:30 a.m., New
York City time, on the proposed date of the Competitive Borrowing and (iv) in
the case of a Fixed Rate Borrowing denominated in an Eligible Currency, not
later than 4:00 p.m., London time, three Business Days before the date of the
proposed Competitive Borrowing; provided that (i) the failure of such Borrower
to give such notice shall be deemed to be a rejection of each Competitive Bid,
(ii) such Borrower shall not accept a Competitive Bid made at a particular
Compet itive Bid Rate if such Borrower rejects a Competitive Bid made at a lower
Competitive Bid Rate, (iii) the aggregate amount of the Competitive Bids
accepted by such Borrower shall not exceed the aggregate amount of the requested
34
Competitive Borrowing specified in the related Competitive Bid Request, (iv) to
the extent necessary to comply with clause (iii) above, such Borrower may accept
Competitive Bids at the same Competitive Bid Rate in part, which acceptance, in
the case of multiple Competitive Bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such Competitive Bid, and
(v) except pursuant to clause (iv) above, no Competitive Bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum principal
amount of at least the Borrowing Minimum and an integral multiple equal to the
Borrowing Multiple; provided further that if a Competitive Loan must be in an
amount less than the Borrowing Minimum because of the provisions of clause (iv)
above, such Competitive Loan may be for a minimum of $1,000,000 (or the Dollar
Equivalent thereof), and in calculating the pro rata allocation of acceptances
of portions of multiple Competitive Bids at a particular Competitive Bid Rate
pursuant to clause (iv) the amounts shall be rounded to integral multiples of
the Borrowing Multiple in a manner determined by such Borrower. A notice given
by any Borrower pursuant to this paragraph shall be irrevocable.
(e) The Applicable Agent shall promptly notify each bidding Lender by
telecopy whether or not its Competitive Bid has been accepted (and, if so, the
amount and Competitive Bid Rate so accepted), and each successful bidder will
thereupon become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Lender, it shall submit such Competitive Bid directly
to the relevant Borrower at least one quarter of an hour earlier than the time
by which the other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.05. Swingline Loans. (a) Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans in dollars
to any Borrower from time to time during the Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Loans exceeding
$20,000,000 or (ii) the sum of the total Revolving Credit Exposures plus the
total Competitive Loan Exposures exceeding the total Facility Commitments;
provided that the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and
subject to the terms and conditions set forth herein, any Borrower may borrow,
prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, a Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 1:00 p.m., New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
35
notice received from any Borrower. The Swingline Lender shall make each
Swingline Loan available to the relevant Borrower by means of a credit to the
general deposit account of the Company with the Swingline Lender by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan (and if the
applicable Borrower is a Borrowing Subsidiary, the Company shall make such funds
available to such Borrowing Subsidiary) or to such other account as may be
specified in the applicable Borrowing Request.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall
notify the relevant Borrower of any participations in any Swingline Loan
acquired pursuant to this paragraph, and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from any Borrower
(or other party on behalf of such Borrower) in respect of a Swingline Loan after
receipt by the Swingline Lender of the proceeds of a sale of participations
therein shall be promptly remitted to the Administrative Agent; any such amounts
received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Lenders that shall have made their payments pursuant
to this paragraph and to the Swingline Lender, as their interests may appear.
The purchase of participations in a Swingline Loan pursuant to this paragraph
shall not relieve the relevant Borrower of any default in the payment thereof.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by (i) 12:00 noon, New York City time, in case of a
36
Loan denominated in dollars, (ii) 11:00 a.m., London time, in the case of a
Revolving Designated Currency Loan, (iii) 11:00 a.m., Tokyo time, in the case of
a Revolving Yen Loan or (iv) 11:00 a.m., local time, in the case of a
Competitive Loan denominated in an Eligible Currency, in each case to the
account of the Applicable Agent most recently designated by it for such purpose
for Loans of such Class by notice to the applicable Lenders; provided that
Swingline Loans shall be made as provided in Section 2.05. The Applicable Agent
will make such Loans available to the relevant Borrower (i) in case of a Loan
denominated in dollars, promptly (but in no event later than 1:00 p.m., New York
City time), by crediting the amounts so received by 12:00 noon, New York City
time, in like funds, to an account of the Company maintained with the
Administrative Agent in New York City, (ii) in the case of Revolving Designated
Currency Loans, promptly (but in no event later than 12:00 noon, London time),
by crediting the amounts so received by 11:00 a.m., London time, in like funds,
to an account of the Company maintained with the Applicable Agent in London,
(iii) in the case of Revolving Yen Loans, promptly (but in no event later than
12:00 noon, Tokyo time), by crediting the amounts so received by 11:00 a.m.,
Tokyo time, in like funds, to an account of the Company maintained with the
Applicable Agent in London (in each case as designated by such Borrower in the
applicable Borrowing Request or Competitive Bid Request (and, if the applicable
Borrower is a Borrowing Subsidiary, the Company shall make such funds available
to such Borrowing Subsidiary)), or (iv) to such other account as may be
specified in the applicable Borrowing Request or Competitive Bid Request.
(b) Unless the Applicable Agent shall have received notice from a
Lender prior to the proposed time of any Borrowing that such Lender will not
make available to the Applicable Agent such Lender's share of such Borrowing,
the Applicable Agent may assume that such Lender has made such share available
on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the relevant Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Applicable Agent, then the
applicable Lender and each Borrower severally agree to pay to the Applicable
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
relevant Borrower to but excluding the date of payment to the Applicable Agent,
at (i) in the case of such Lender, (x) the Federal Funds Effective Rate (in the
case of a Borrowing in dollars) and (y) the rate reasonably determined by the
Applicable Agent to be the cost to it of funding such amount (in the case of a
Borrowing in an Eligible Currency) or (ii) in the case of such Borrower, the
interest rate applicable to the subject Loan. If such Lender pays such amount to
the Applicable Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing and the Applicable Agent shall return to such
Borrower any amount (including interest) paid by the Borrower to the Applicable
Agent pursuant to this paragraph with respect to such amount.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing
initially
37
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurocurrency Revolving Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the relevant Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. A Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing. This Section shall not apply
to Competitive Borrowings or Swingline Borrowings, which may not be converted or
continued. Notwithstanding any contrary provision herein, this Section shall not
be construed to permit any Borrower to (i) change the currency of any Borrowing
or (ii) convert any Multicurrency Borrowing to an ABR Borrowing.
(b) To make an election pursuant to this Section, a Borrower shall
notify the Administrative Agent of such election by telephone by the time and at
the office at which a Borrowing Request would be required to be delivered under
Section 2.03 if such Borrower were requesting a Revolving Borrowing of the Type
resulting from such election to be made on the effective date of such election.
Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Interest Election Request in a form reasonably approved by the
Administrative Agent and signed by the relevant Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each
resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then such Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
38
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the relevant Borrower fails to deliver a timely Interest
Election Request with respect to a Eurocurrency Revolving Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such Borrowing is
repaid as provided herein, at the end of such Interest Period such Borrowing
shall be converted to an ABR Borrowing (unless such Borrowing is a Multicurrency
Borrowing, in which case such Borrowing shall be continued at the end of the
Interest Period applicable thereto as a Eurocurrency Revolving Borrowing with an
Interest Period of a duration of one month). Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the
Applicable Agent, at the request of the Required Lenders, so notifies the
Company, then, so long as an Event of Default is continuing (i) no outstanding
Revolving Borrowing may be converted to or continued as a Eurocurrency Borrowing
(except as set forth in clause (ii)(y)) and (ii) unless repaid (x) each
Eurocurrency Revolving Borrowing (other than a Multicurrency Borrowing) shall be
converted to an ABR Borrowing at the end of the Interest Period applicable
thereto and (y) each Multicurrency Borrowing shall be continued at the end of
the Interest Period applicable thereto as a Multicurrency Borrowing with an
Interest Period of a duration of one month.
SECTION 2.08. Termination, Reduction and Increase of Commitments. (a)
Unless previously terminated, the Facility Commitments, the Designated Currency
Commitments and the Yen Commitments shall each terminate on the Maturity
Date.
(b) The Company may at any time terminate, or from time to time reduce,
the Facility Commitments, the Designated Currency Commitments or the Yen
Commitments; provided that (i) each reduction of the Commitments shall be in an
amount that is an integral multiple of $1,000,000 and not less than $5,000,000
and (ii) the Company shall not terminate or reduce (A) the Facility Commitments
if, after giving effect to any concurrent prepayment of the Loans in accordance
with Section 2.10, the sum of the Revolving Credit Exposures plus the total
Competitive Loan Exposures would exceed the total Facility Commitments, (B) the
Designated Currency Commitments if, after giving effect to any concurrent
prepayment of the Loans in accordance with Section 2.10, the aggregate principal
amount of the outstanding Revolving Designated Currency Loans would exceed the
total Designated Currency Commitments, or (C) the Yen Commitments if, after
giving effect to any concurrent prepayment of the Loans in accordance with
Section 2.10, the aggregate principal amount of the outstanding Revolving Yen
Loans would exceed the total Yen Commitments.
(c) The Company shall notify the Administrative Agent of any election
to terminate or reduce the Facility Commitments, the Designated Currency
Commitments or the Yen Commitments under paragraph (b) of this Section at least
one Business Day (or, to the extent a concurrent prepayment of Loans is required
in accordance with Section 2.10, upon the minimum advance notice required in
connection with such prepayment under such Section) prior to the
39
effective date of such termination or reduction, specifying such election and
the effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Company pursuant to this Section shall be irrevocable;
provided that a notice of termination of the Facility Commitments, the
Designated Currency Commitments or the Yen Commitments delivered by the Company
may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Company (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Facility
Commitments, the Designated Currency Commitments or the Yen Commitments shall be
permanent. Each reduction of the Facility Commitments, the Designated Currency
Commitments or the Yen Commitments shall be made ratably among the Lenders, the
Designated Currency Lenders or the Yen Lenders, as the case may be, in
accordance with their respective Facility Commitments, Designated Currency
Commitments or Yen Commitments, as applicable.
(d) Upon at least 15 days' prior notice to the Administrative Agent
(which notice the Administrative Agent shall promptly transmit to each of the
Lenders), the Company shall have the right, subject to the terms and conditions
set forth below, to increase the aggregate amount of the Facility Commitments in
multiples of $500,000 up to an aggregate amount not to exceed $40,000,000. Any
such increase shall apply, at the option of the Company, (x) to the Facility
Commitment of one or more Lenders, if such Lender or Lenders consent to such
increase, or (y) to the creation of new Facility Commitments of one or more
institutions not then a Lender hereunder; provided that (i) if any such
institution is not then a Lender hereunder, such institution shall be reasonably
acceptable to the Administrative Agent, (ii) such existing or new Lender shall
execute and deliver to the Company and the Administrative Agent an Assumption
Agreement substantially in the form of Exhibit G hereto (an "Assumption
Agreement") and (iii) if any Revolving Loans are outstanding at the time of any
such increase, the Company will, notwithstanding anything to the contrary
contained in this Agreement, on the date of such increase incur and repay or
prepay one or more Revolving Loans from the Lenders in such amounts so that
after giving effect thereto, the Revolving Loans shall be outstanding on a pro
rata basis (based on the Facility Commitments of the Lenders after giving effect
to the changes made pursuant hereto on such date) from all the Lenders. Upon the
effectiveness of any increase in Facility Commitments pursuant to this Section
2.08(d), Schedule 2.01(a) hereto shall be automatically amended to reflect such
increase. It is understood that any increase in the amount of the Facility
Commitments pursuant to this Section 2.08(d) shall not constitute an amendment
or modification of this Agreement pursuant to Section 10.02.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) Each Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
of such Borrower on the Maturity Date, (ii) to the Administrative Agent for the
40
account of each Lender the then unpaid principal amount of each Competitive Loan
of such Borrower on the last day of the Interest Period applicable to such Loan
and (iii) to the Swingline Lender the then unpaid principal amount of each
Swingline Loan of such Borrower on the earlier of the Maturity Date and the
first date after such Swingline Loan is made that is the 15th or last day of a
calendar month and is at least two Business Days after such Swingline Loan is
made.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type (and, in
the case of a Multicurrency Loan, the currency) thereof and the Interest Period
(if any) applicable thereto, (ii) the amount of any principal or interest due
and payable or to become due and payable from each Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of any Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, each Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent and the Company. Thereafter, the Loans
evidenced by each such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.10. Prepayment of Loans. (a) Any Borrower shall have the
right at any time and from time to time to prepay any Borrowing of such Borrower
in whole or in part, subject to prior notice in accordance with paragraph (d) of
this Section; provided that no Borrower shall have the right to prepay any
Competitive Loan without the prior consent of the Lender thereof.
(b) If, on the last day of any Interest Period for any Borrowing, the
sum of the total Revolving Credit Exposures plus the total Competitive Loan
Exposures exceeds the total Facility Commitments, the relevant Borrower shall,
41
on such day, prepay Revolving Loans in an amount equal to the lesser of (i) such
excess and (ii) the amount of such Borrowing. If, on any Reset Date, the sum of
the total Revolving Credit Exposures plus the total Competitive Loan Exposures
exceeds 105% of the total Facility Commitments, then the Borrowers shall, on the
next Reset Date, prepay one or more Revolving Borrowings in an aggregate
principal amount equal to the excess, if any, of the sum of the total Revolving
Credit Exposures plus the total Competitive Loan Exposures (in each case as of
such next Reset Date) over the total Facility Commitments.
(c) If, on the last day of any Interest Period for any Multicurrency
Borrowing, the Dollar Equivalent of the aggregate principal amount of
outstanding Multicurrency Loans exceeds $50,000,000, the relevant Borrower
shall, on such day, prepay such Multicurrency Borrowing in an amount equal to
the lesser of (i) such excess and (ii) the amount of such Borrowing. If, on any
Reset Date, the Dollar Equivalent of the aggregate principal amount of
outstanding Multicurrency Loans exceed 105% of $50,000,000, then the Borrowers
shall, on the next Reset Date, prepay one or more Multicurrency Borrowings in an
aggregate principal amount equal to the excess, if any, of the Dollar Equivalent
of the aggregate principal amount of outstanding Multicurrency Loans (as of such
next Reset Date) over $50,000,000.
(d) The relevant Borrower shall notify the Applicable Agent (and, in
the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Revolving Dollar Borrowing, not later than 11:00
a.m., New York City time, three Business Days before the date of prepayment,
(ii) in the case of prepayment of a Eurocurrency Designated Currency Borrowing
or a Eurocurrency Yen Borrowing, not later than 10:00 a.m., London time, three
Business Days before the date of prepayment, (iii) in the case of prepayment of
an ABR Revolving Borrowing, not later than 11:00 a.m., New York City time, on
the date of prepayment, or (iv) in the case of prepayment of a Swingline Loan,
not later than 12:00 noon, New York City time, on the date of prepayment. Each
such notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid; provided
that, if a notice of prepayment is given in connection with a conditional notice
of termination of the Facility Commitments, the Designated Currency Commitments
or the Yen Commitments as contemplated by Section 2.08, then such notice of
prepayment may be revoked if such notice of termination is revoked in accordance
with Section 2.08. Promptly following receipt of any such notice relating to a
Revolving Borrowing, the Administrative Agent shall advise the Lenders of the
contents thereof. Each partial prepayment of any Revolving Borrowing shall be in
an amount that would be permitted in the case of an advance of a Revolving
Borrowing of the same Type as provided in Section 2.02 (other than any partial
prepayment made concurrently with a reduction of the commitments permitted by
Section 2.08(b), which may be in the amount necessary to comply with the
condition to such reduction set forth in such Section). Each prepayment of a
Revolving Borrowing shall be applied ratably to
42
the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.12.
SECTION 2.11. Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Rate on the daily amount of the Facility Commitment of
such Lender (whether used or unused) during the period from and including the
date hereof to but excluding the date on which such Facility Commitment
terminates; provided that, if such Lender continues to have any Revolving Credit
Exposure or Competitive Loan Exposure after its Facility Commitment terminates,
then such facility fee shall continue to accrue on the daily amount of such
Lender's Revolving Credit Exposure or Competitive Loan Exposure from and
including the date on which its Facility Commitment terminates to but excluding
the date on which such Lender ceases to have any Revolving Credit Exposure or
Competitive Loan Exposure. Accrued facility fees shall be payable in arrears on
the last day of March, June, September and December of each year and on the date
on which the Facility Commitments terminate, commencing on the first such date
to occur after the date hereof; provided that any facility fees accruing after
the date on which the Facility Commitments terminate shall be payable on demand.
All facility fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(b) The Company agrees to pay to the Administrative Agent for the
account of each Lender a utilization fee, which shall accrue at a rate of .125%
per annum on the average daily outstanding amount of the Revolving Credit
Exposure of such Lender, for each day the Aggregate Utilization Percentage
exceeds 33%. Accrued utilization fees, if any, shall be payable in arrears on
the last day of March, June, September and December of each year and on the
Maturity Date. All utilization fees shall be computed on a basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(c) The Company agrees to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon
between the Company and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees, to the Lenders. Fees paid shall not be refundable
under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at a rate per annum equal to
the Alternate Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall bear
interest at a rate per annum equal to (i) in the case of a Eurocurrency
Revolving Loan, the LIBO Rate for the Interest Period in effect for such
Borrowing plus the
43
Applicable Rate, or (ii) in the case of a Eurocurrency Competitive Loan, the
LIBO Rate for the Interest Period in effect for such Borrowing plus (or minus,
as applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at a rate per annum equal
to the Fixed Rate applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by any Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided above or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Loans as provided above.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; provided that (i) interest accrued pursuant
to paragraph (d) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period for the Facility
Commitments), accrued interest on the principal amount repaid or prepaid shall
be payable on the date of such repayment or prepayment, (iii) in the event of
any conversion of any Eurocurrency Revolving Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be payable
on the effective date of such conversion and (iv) all accrued interest shall be
payable upon termination of the Facility Commitments.
(f) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be presumed correct absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurocurrency Borrowing:
(a) the Administrative Agent determines (which determination shall be
presumed correct absent manifest error) that adequate and reasonable means do
not exist for ascertaining the LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders (or,
(i) in the case of a Eurocurrency Competitive Loan, the Lender that is required
to make such Loan or (ii) in the case of a Revolving Designated Currency Loan or
Revolving Yen Loan, as the case may be, Designated Currency Lenders or Yen
Lenders, as applicable, having Designated Currency Commitments or Yen
Commitments, as applicable, representing at least 51% of the Designated Currency
Commitments or Yen Commitments, as applicable, at such time) that the LIBO Rate
for such Interest Period will not adequately and fairly reflect the cost to such
Lenders (or Lender) of making or maintaining their Loans (or its
44
Loan) included in such Borrowing for such Interest Period; or
(c) in the case of a Multicurrency Borrowing, the Administrative Agent
determines (which determination shall be presumed correct absent manifest error)
that deposits in the applicable currency are not generally available, or cannot
be obtained by the Multicurrency Lenders in the applicable market; then the
Administrative Agent shall give notice thereof to the Company and the Lenders or
the applicable Multicurrency Lenders by telephone or telecopy as promptly as
practicable thereafter and, until the Administrative Agent notifies the Company
and the Lenders or the applicable Multicurrency Lenders that the circumstances
giving rise to such notice no longer exist, (i) any Interest Election Request
that requests the conversion of any Revolving Borrowing to, or continuation of
any Revolving Borrowing as, a Eurocurrency Borrowing shall be ineffective, and
any Eurocurrency Borrowing so requested to be continued shall, at the option of
the Company, be repaid in full on the last day of the Interest Period applicable
thereto, or be converted to an ABR Borrowing denominated in dollars (and in the
case of a Multicurrency Borrowing, such conversion shall be made at the Exchange
Rate determined by the Administrative Agent on the last day of the then current
Interest Period with respect thereto), (ii) if any Borrowing Request requests a
Eurocurrency Revolving Borrowing (other than a Multicurrency Borrowing), such
Borrowing shall be made as an ABR Borrowing and (iii) any request by any
Borrower for a Eurocurrency Competitive Borrowing or a Multicurrency Borrowing
shall be ineffective; provided that if the circumstances giving rise to such
notice do not affect all the Lenders, then requests for Eurocurrency Competitive
Borrowings may be made to Lenders that are not affected thereby and, if the
circumstances giving rise to such notice do not affect all applicable
currencies, then requests for Eurocurrency Borrowings may be made in the
currencies that are not affected thereby and, if the circumstances giving rise
to such notice only affect one Type of Borrowing, then the other Type of
Borrowing shall not be affected.
SECTION 2.14. Increased Costs. (a) If any Governmental Authority shall
have in effect any reserve, liquid asset or similar requirement with respect to
any category of deposits or liabilities customarily used to fund Loans, or by
reference to which interest rates applicable to Loans are determined, and the
result of such requirement shall be to increase the cost to such Lender of
making or maintaining any Loan, and such Lender shall deliver to the Company a
notice requesting compensation under this paragraph and setting forth the
applicable Statutory Reserve Rate, then the Company shall pay to such Lender on
each Interest Payment Date with respect to each affected Loan additional
interest at a rate per annum up to but not exceeding the excess of (i) the rate
otherwise applicable to such Loan (the "Applicable Interest Rate") divided by
one minus the applicable Statutory Reserve Rate over (ii) the Applicable
Interest Rate.
(b) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the
account of,
45
or credit extended by, any Lender (except any such reserve requirement
covered by subsection (a) above); or
(ii) impose on any Lender or the London interbank market (or any other
market in which the funding operations of such Lender shall be
conducted with respect to any Eligible Currency) any other condition
affecting this Agreement or Eurocurrency Loans or Fixed Rate Loans
made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of any
sum received or receivable by such Lender in respect thereof hereunder (whether
of principal, interest or otherwise), then the Company will pay to such Lender
such additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered.
(c) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by such Lender to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Company will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(d) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a), (b) or (c) of this Section shall be delivered to
the Company and shall be presumed correct absent manifest error. The Company
shall pay such Lender the amount due under this Section within 10 days after
receipt of the relevant certificate.
(e) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Company shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than six months prior to the date that such Lender
notifies the Company of the Change in Law giving rise to such increased costs or
reductions and of such Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the six-month period referred to above shall
be extended to include the period of retroactive effect thereof.
(f) Notwithstanding the foregoing provisions of this Section, a Lender
shall not be entitled to compensation pursuant to this Section in respect of any
Competitive Loan if the Change in Law that would otherwise entitle it to such
compensation shall have been publicly announced or be otherwise known to it
46
prior to submission of the Competitive Bid pursuant to which such Loan
was made.
SECTION 2.15. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurocurrency Loan or Fixed Rate Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an
Event of Default), (b) the conversion of any Eurocurrency Loan other than on the
last day of the Interest Period applicable thereto, (c) the conversion of any
Multicurrency Loan to a dollar denominated Loan pursuant to any Section of this
Agreement, (d) the failure to borrow, convert, continue or prepay any
Eurocurrency Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice is permitted to be revocable under Section
2.10(d) and is revoked in accordance herewith), (e) the failure to borrow any
Eurocurrency Competitive Loan after accepting the Competitive Bid to make such
Loan, or (f) the assignment of any Eurocurrency Loan or Fixed Rate Loan other
than on the last day of the Interest Period applicable thereto as a result of a
request by the Company pursuant to Section 2.18, then, in any such event, the
Company shall compensate each Lender for the loss, cost and expense attributable
to such event (and in the case of any conversion of Multicurrency Loans to
dollar Loans, such loss, cost or expense shall also include any loss, cost or
expense sustained by a Multicurrency Lender as a result of such conversion). In
the case of a Eurocurrency Loan, the loss to any Lender attributable to any such
event shall be deemed to include an amount determined by such Lender to be
equal, except as otherwise provided in the final parenthetical in the preceding
sentence, to the excess, if any, of (i) the amount of interest that such Lender
would pay for a deposit equal to the principal amount of such Loan (and in the
same currency as such Loan) for the period from the date of such payment,
conversion, failure or assignment to the last day of the then current Interest
Period for such Loan (or, in the case of a failure to borrow, convert or
continue, the duration of the Interest Period that would have resulted from such
borrowing, conversion or continuation) if the interest rate payable on such
deposit were equal to the LIBO Rate for such Interest Period, over (ii) the
amount of interest that such Lender would earn on such principal amount for such
period if such Lender were to invest such principal amount for such period at
the interest rate that would be bid by such Lender (or an affiliate of such
Lender) for deposits in the same currency from other banks in the eurodollar
market at the commencement of such period. A certificate of any Lender setting
forth any amount or amounts that such Lender is entitled to receive pursuant to
this Section shall be delivered to the Company and shall be presumed correct
absent manifest error. The Company shall pay such Lender the amount due under
this Section within 10 days after receipt of the relevant certificate.
SECTION 2.16. Taxes. (a) Any and all payments by or an account of any
obligation of any Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if any
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
47
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) such Borrower shall make such deductions
and (iii) such Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The relevant Borrower shall indemnify the Administrative Agent and
each Lender, within 10 days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of any Borrower hereunder (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section), and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered
to the Company by a Lender, or by the Administrative Agent on its own behalf or
on behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by any Borrower to a Governmental Authority, such Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Each Lender that is not a United States person as defined in
section 7701(a)(30) of the Code shall, if legally able to do so, prior to the
immediately following due date of any payment by the Borrower under this
Agreement, deliver to the Borrower Internal Revenue Service Form W-8BEN, Form
1001, Form W- 8ECI or Form 4224, or, in the case of a Lender claiming exemption
from U.S. federal withholding tax with respect to payments under this Agreement
under section 871(h) or 881(c) of the code relating to payments of "portfolio
interest", Form W-8BEN and a statement substantially in the form of Exhibit F,
and any other certificate or statement of exemption or any subsequent version
thereof or successors thereto, properly completed and duly executed by such
Lender claiming complete exemption or a reduced rate of United States federal
withholding tax. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this Agreement
pursuant to the law of a Relevant Jurisdiction, other than the United States of
America, or under any treaty to which a Relevant Jurisdiction is a party shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
48
Borrower as will permit such payments to be made without withholding or at a
reduced rate.
If the Company determines in good faith that a reasonable basis exists
for contesting an Indemnified Tax or Other Tax, the relevant Lender or the
Administrative Agent, as applicable, shall cooperate with the Company in
challenging such Tax at the Company's expense if requested by the Company. If
any Lender or the Administrative Agent, as applicable, shall become aware that
it is entitled to receive a refund in respect of Indemnified Taxes or Other
Taxes pursuant to Section 2.16, it shall promptly notify the Borrower of the
availability of such refund and shall, within 30 days after receipt of a request
by the Borrower, apply for such refund if it is not otherwise disadvantageous to
such Lender or the Administrative Agent. If any Lender or the Administrative
Agent, as applicable, receives a refund (whether by way of a direct payment or
by offset) of any Indemnified Tax or Other Tax for which a payment has been made
pursuant to Section 2.16 or realizes any credit or other tax benefit as a result
of the payment of such Tax by any Borrower, which refund, credit or tax benefit
in the good faith judgment of such Lender or the Administrative Agent, as the
case may be, is allocable to such payment made under Section 2.16, the amount of
such refund, credit or tax benefit (together with any interest received from the
applicable Governmental Authority thereon) shall be paid to such Borrower.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) Except as set forth with respect to payments of principal of or
interest on Multicurrency Loans in Schedule 2.17, each Borrower shall make each
payment required to be made by it hereunder (whether of principal, interest or
fees under Section 2.09, 2.11, 2.12, 2.14, 2.15 or 2.16) from a payment location
in the United States prior to 1:00 p.m., New York City time (in the case of
payments with respect to Revolving Designated Currency Loans, prior to 11:00
a.m., London time, or in the case of payments with respect to Revolving Yen
Loans, prior to 11:00 a.m., Tokyo time), on the date when due, in immediately
available funds, without set-off or counterclaim. Any amounts received after
such time (or any other applicable time set forth with respect to Multicurrency
Loans in Schedule 2.17) on any date may, in the discretion of the Applicable
Agent (or in the case of a Competitive Loan, the applicable Lender), be deemed
to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made (i) in the case of
amounts due in dollars, to the Applicable Agent at its offices at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx and (ii) in the case of amounts due in any Eligible
Currency, to the Applicable Agent at its offices at Trinity Tower, 9 Xxxxxx
Xxxxx Street, London, England E19YT, or at such other office as shall be
specified for such currency by the Applicable Agent, except that payments to be
made directly to the Swingline Lender as expressly provided herein and payments
pursuant to Sections 2.14, 2.15, 2.16 and 10.03 shall be made directly to the
Persons entitled thereto. The Applicable Agent shall distribute any such
payments received by it for the account
49
of any other Person to the appropriate recipient promptly following receipt
thereof. If any payment hereunder shall be due on a day that is not a Business
Day, the date for payment shall be extended to the next succeeding Business Day,
and, in the case of any payment accruing interest, interest thereon shall be
payable for the period of such extension. All payments hereunder (whether of
principal, interest or otherwise) shall be made in the applicable currency
specified elsewhere herein or, if no currency is specified, in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, to pay interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay principal then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal then due to such
parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in Swingline Loans
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans and participations in Swingline Loans
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans and participations in
Swingline Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Revolving Loans and participations in Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by any Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans to any assignee
or participant, other than to any Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). Each
Borrower consents to the foregoing and agrees, to the extent it may effectively
do so under applicable law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against such Borrower rights of
set-off and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of such Borrower in the amount of such
participation.
(d) Unless the Administrative Agent shall have received notice from
the Company or the relevant Borrower prior to the date on which any payment is
due to the Administrative Agent for the account of the Lenders hereunder that
such Borrower will not make such payment, the Administrative Agent may assume
that such Borrower has made such payment on such date in accordance herewith and
50
may, in reliance upon such assumption, distribute (or cause the Applicable Agent
to distribute) to the Lenders the amount due. In such event, if such Borrower
has not in fact made such payment, then each of the Lenders severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender with interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, (i) in the case of a Borrowing in dollars, at the Federal
Funds Effective Rate and (ii) in the case of a Borrowing in an Eligible
Currency, at the rate reasonably determined by the Administrative Agent to be
the cost to it of funding such amount.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(c), 2.06(b) or 2.17(d), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such Sections
until all such unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.14, or if any Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Company
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if any
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, or if any
Lender fails to approve any waiver or amendment to this Agreement which has been
approved by the Required Lenders, then the Company may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 10.04), all its interests, rights and
obligations under this Agreement (other than any outstanding Competitive Loans
held by it) to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that (i)
the Company shall have received the prior written consent of the Administrative
Agent (and, if a Commitment is being assigned, the Swingline Lender), which
consent shall not unreasonably be withheld, (ii) such Lender shall
51
have received payment of an amount equal to the outstanding principal of its
Loans (other than Competitive Loans) and participations in Swingline Loans,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Company (in the case of all other amounts) and
(iii) in the case of any such assignment resulting from a claim for compensation
under Section 2.14 or payments required to be made pursuant to Section 2.16,
such assignment will result in a reduction in such compensation or payments. A
Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling such Borrower to require such assignment and delegation
cease to apply.
SECTION 2.19. Borrowing Subsidiaries. On or after the Effective Date,
the Company may designate any Subsidiary of the Company as a Borrowing
Subsidiary by delivery to the Administrative Agent of a Borrowing Subsidiary
Agreement executed by such Subsidiary and the Company, and upon such delivery
such Subsidiary shall for all purposes of this Agreement be a Borrowing
Subsidiary and a party to this Agreement until the Company shall have executed
and delivered to the Administrative Agent a Borrowing Subsidiary Termination
with respect to such Subsidiary, whereupon such Subsidiary shall cease to be a
Borrowing Subsidiary and a party to this Agreement. Notwithstanding the
preceding sentence, no Borrowing Subsidiary Termination will become effective as
to any Borrowing Subsidiary at a time when any principal of or interest on any
Loan to such Borrowing Subsidiary shall be outstanding hereunder, provided that
such Borrowing Subsidiary Termination shall be effective to terminate such
Borrowing Subsidiary's right to make further Borrowings under this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Company and its
Material Subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, has all requisite power
and authority to carry on its business as now conducted and as proposed to be
conducted on or after the Spin-off Date and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions are
within the Company's (and, as applicable, each Borrowing Subsidiary's) corporate
powers and have been duly authorized by all necessary corporate and, if
required,
52
stockholder action. This Agreement has been duly executed and delivered by the
Company and constitutes a legal, valid and binding obligation of the Company,
and each Borrowing Subsidiary Agreement with respect to any Borrowing Subsidiary
(as to which a Borrowing Subsidiary Termination has not become effective) has
been duly executed and delivered by the Company and such Borrowing Subsidiary
and constitutes a legal, valid and binding obligation of the Borrowing
Subsidiary thereunder, in each case enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law. Each Spin-off Document referred to in clause (ii) or (iii) of the
definition thereof, when executed and delivered by such Borrower, will
constitute a legal, valid and binding obligation of such Borrower, in each case,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect, and except for such consents,
approvals, registrations, filings and other actions (i) related to the Spin-off
which shall be obtained prior to the Spin-off Date or (ii) the failure to obtain
or make could not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect, (b) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of the
Company or any of its Subsidiaries or any order of any Governmental Authority,
except for such violations which, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, (c) will not
violate or result in a default under any indenture, agreement or other
instrument binding the Company or any of its Subsidiaries or its assets, or give
rise to a right thereunder to require any payment to be made by the Company or
any of its Subsidiaries, except for such violations and defaults which,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, and (d) will not result in the creation or imposition
of any Lien on any asset of the Company or any of its Material Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The
Company has heretofore furnished to the Lenders (i) the combined balance sheet
of the Company at December 31, 1998 and December 31, 1999 and the related
combined statements of operations, shareholders' net investment and cash flows
of the Company for the fiscal years ended December 31, 1998 and December 31,
1999, in each case reported on by PricewaterhouseCoopers LLP, independent public
accountants, and (ii) the combined balance sheet of the Company at June 30, 2000
and the related combined statements of operations and cash flows for the
53
fiscal quarter and the portion of the fiscal year ended June 30, 2000, certified
by a Financial Officer of the Company. Such financial statements (including
notes thereto) present fairly, in all material respects, the financial position
and results of operations and cash flows of the Company and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP,
subject to year-end audit adjustments and the absence of footnotes in the case
of the statements referred to in clause (ii) above.
(b) The Company has heretofore furnished to the Lenders its unaudited
pro forma condensed balance sheet and unaudited pro forma condensed statement of
operations, each prepared giving effect to the Transactions as if the
Transactions had occurred on June 30, 2000, in the case of such balance sheet
and January 1, 1999, in the case of such statement of operations. Such pro forma
financial statements (i) have been prepared in good faith based on the same
assumptions used to prepare the pro forma financial statements included in the
Information Memorandum (which assumptions are believed by the Company to be
reasonable), (ii) are based on the best information available to the Company
after due inquiry, (iii) accurately reflect all adjustments necessary to give
effect to the Transactions and (iv) present fairly, in all material respects (x)
in the case of such pro forma balance sheet, the financial position of the
Company and its consolidated Subsidiaries as of June 30, 2000, as if the
Transactions had occurred on such date, and (y) in the case of such pro forma
statements of operations, the results of operations of the Company and its
consolidated Subsidiaries for the six months ended June 30, 2000 (as if the
Transactions had occurred on January 1, 1999).
(c) Since December 31, 1999, there has been no material adverse change
in the business, assets, operations, prospects or financial condition, of the
Company and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Company and its Material
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to the business of the Company and its
Subsidiaries, taken as a whole, except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes. There are no Liens on any
such property other than Liens permitted under Section 6.01.
(b) Each of the Company and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to the business of the Company and its Subsidiaries taken as a
whole, and the use thereof by the Company and its Subsidiaries does not infringe
upon the rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Company, threatened
54
against or affecting the Company or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely deter mined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement, any Borrowing Subsidiary Agreement
or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Company nor any of
its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the Company
and its Subsidiaries is in compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property (including without
limitation any "margin" rules or regulations promulgated by the Board) and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither the
Company nor any of its Material Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Company and each of its Subsidiaries
has timely filed or caused to be filed all Tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Company or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
55
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of such Plan by an amount that could reasonably be
expected to result in a Material Adverse Effect, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed the fair market value of the assets of all such underfunded
Plans by an amount that could reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.11. Disclosure. None of the reports, financial statements,
certificates or other written information furnished by or on behalf of any
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or any Borrowing Subsidiary Agreement or delivered
hereunder or thereunder (as modified or supplemented by other information so
furnished), including without limitation the Information Statement, taken as a
whole, contain any material misstatement of fact or omits to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, the Company represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
SECTION 3.12. Subsidiaries. Schedule 3.12 sets forth as of the date
hereof and the Spin-off Date a list of all Subsidiaries and the percentage
ownership interest of the Company therein. As of the Effective Date and the
Spin-off Date, the shares of capital stock of such Subsidiaries will be fully
paid and non-assessable and such shares and other ownership interests so
indicated by Schedule 3.12 will be owned by the Company, directly or indirectly,
free and clear of all Liens.
SECTION 3.13. Use of Proceeds. The proceeds of the Loans shall be
applied by the Borrowers in accordance with the provisions of Section 5.08.
SECTION 3.14. Solvency. On the date of the first Borrowing hereunder
and immediately after giving effect to such Borrowing, (a) the fair value of the
assets of the Company, at a fair valuation, will exceed its debts and
liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of the property of the Company will be greater than the amount
that will be required to pay the probable liability of its debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) the Company does not intend to
incur or does not believe it will incur debts and liabilities, subordinated,
contingent or otherwise, beyond its ability to pay such debts and liabilities as
they become absolute and matured; and (d) the Company will not have unreasonably
small capital with which to conduct the business in
56
which it is engaged as such business is now conducted and is proposed to be
conducted following the Effective Date and the Spin-off Date.
SECTION 3.15. Representation and Warranties Related to New D&B and the
Spin-off. (a) New D&B is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and has all requisite
power and authority to execute, deliver and perform the Spin-off Documents
referred to in clause (ii) or (iii) of the definition thereof.
(b) The execution, delivery and performance by New D&B of the Spin-off
Documents referred to in clause (ii) or (iii) of the definition thereof to which
it is a party and the consummation by New D&B of the Spin-off (i) are within New
D&B's corporate powers, (ii) have been duly authorized by all necessary
corporate and, if required, stockholder action and (iii) (w) do not require any
consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except for such as have been obtained or made and are in
full force and effect, and except for such consents, approvals, registrations,
filings and other actions (i) which shall be obtained prior to the Spin-off Date
or (ii) the failure to obtain or make could not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect, (x)
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of New D&B or any order of any Governmental
Authority, except for such violations which, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, (y)
will not violate or result in a default under any indenture, agreement or other
instrument binding upon New D&B or any of its subsidiaries or its assets, or
give rise to a right thereunder to require any payment to be made by New D&B or
any of its subsidiaries, except for such violations and defaults which,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, and (z) will not result in the creation or imposition
of any Lien on any asset of New D&B or any of its subsidiaries. Each Spin-off
Document referred to in clause (ii) or (iii) of the definition thereof, when
executed and delivered by New D&B, will constitute a legal, valid and binding
obligation of New D&B, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
ARTICLE 4
CONDITIONS
SECTION 4.01. Effective Date. The obligations of the Lenders to make
Loans hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 10.02):
57
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received favorable written
opinions (addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of Xxxxx X. Xxxxxxxx, Esq., Vice President and Corporate
Secretary of the Company, and Xxxxxxx Xxxxxxx & Xxxxxxxx, special New York
counsel for the Company, substantially in the form of Exhibit B-1 and B-2,
respectively, and covering such other matters relating to the Company, this
Agreement or the Transactions as the Required Lenders shall reasonably request.
The Company hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Company, the
authorization of the Transactions and any other legal matters relating to the
Company, this Agreement or the Transactions, all in form and substance
reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the Chairman, the President, a Vice President
or a Financial Officer of the Company, confirming compliance with the conditions
set forth in paragraphs (a) (including the representations and warranties set
forth in Section 3.04) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all reasonable out-of-pocket
expenses required to be reimbursed or paid by the Company hereunder.
(f) The Administrative Agent shall have received evidence satisfactory
to it that all commitments to extend credit under the Existing Credit Agreements
shall have been terminated and all amounts outstanding or payable thereunder
shall have been repaid in full.
(g) The Lenders shall have received copies of all the financial
statements referred to in Section 3.04, and all such financial statements shall
be consistent in all material respects with other information previously
provided to the Lenders.
(h) The proposed Spin-off (including without limitation the corporate
and capital structure of the Borrowers after giving effect thereto, their
respective organizational documents and any material contracts to which they are
a party described therein) shall be in all material respects as described in the
Information Statement, with only such material changes as the Required Lenders
shall have approved. All material authorizations and approvals to be obtained
from any Governmental Authority with respect to the Transactions (including
without limitation the private letter ruling from the Internal Revenue Service
(the "IRS Ruling") to the effect that the Spin-off will be tax-free to the
Company and the
58
shareholders of the Company) as described in the Information Statement shall
have been obtained and shall be in full force and effect. The board of directors
of the Company shall have authorized the Spin-off and declared a ratable
dividend to the shareholders of the Company payable in shares of capital stock
of New D&B. The Administrative Agent shall have received copies of each such
authorization or approval (including without limitation the IRS Ruling) and each
Spin-off Document, if any, in effect on the Effective Date, certified by a
Financial Officer as complete and correct.
(i) The Lenders shall have received a certificate of a responsible
officer of the Company certifying that there are no actions, suits or
proceedings (other than matters disclosed in the Information Statement) by or
before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Company, threatened against or affecting the Company or any of
its Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect or (ii)
that involves this Agreement, any Borrowing Subsidiary Agreement or the
Transactions.
The Administrative Agent shall notify the Company and the Lenders of
the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 10.02) at or prior to 3:00 p.m., New
York City time, on or prior to October 31, 2000 (and, in the event such
conditions are not so satisfied or waived, the Commitments shall terminate at
such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to make
a Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) The representations and warranties of the Company set forth in
this Agreement (other than the representations and warranties set forth in
Section 3.04, and, in the case of any Borrowing made after the consummation of
the Spin-off, Section 3.15) and, in the case of a Borrowing by a Borrowing
Subsidiary, the representations and warranties of such Borrowing Subsidiary in
its Borrowing Subsidiary Agreement, shall be true and correct on and as of the
date of such Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing. Each Borrowing
shall be deemed to constitute a representation and warranty by the Company and,
if applicable, the relevant Borrowing Subsidiary on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section.
SECTION 4.03. Each Borrowing Subsidiary Credit Event. The obligation
of
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each Lender to make Loans hereunder to any Borrowing Subsidiary is subject to
the satisfaction of the following conditions:
(a) The Administrative Agent (or its counsel) shall have received from
each party thereto either (i) a counterpart of such Borrowing Subsidiary's
Borrowing Subsidiary Agreement or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page thereof) that such party has signed a counterpart of such
Borrowing Subsidiary Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion of counsel for such Borrowing Subsidiary (which counsel shall be
reasonably acceptable to the Administrative Agent), substantially in the form of
Exhibit C, and covering such other matters relating to such Borrowing Subsidiary
or its Borrowing Subsidiary Agreement as the Administrative Agent shall
reasonably request.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of such Borrowing
Subsidiary, the authorization of the Transactions relating to such Borrowing
Subsidiary and any other legal matters relating to such Borrowing Subsidiary,
its Borrowing Subsidiary Agreement or such Transactions, all in form and
substance reasonably satisfactory to the Administrative Agent and its counsel.
ARTICLE 5
AFFIRMATIVE COVENANTS
Until the Commitments have expired or have been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Company covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The Company
will furnish to the Administrative Agent (with a copy for each Lender):
(a) within 90 days after the end of each fiscal year of the Company,
its audited consolidated balance sheet and related statements of income and cash
flows as of the end of and for such year, setting forth, in the case of
statements of income and cash flows, comparative figures for the previous fiscal
year, all reported on by PricewaterhouseCoopers LLP or other independent public
accountants of recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception as to the
scope of such audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and results of
operations of the Company and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters
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of each fiscal year of the Company, its consolidated balance sheet and related
statements of operations as of the end of and for such fiscal quarter and the
then elapsed portion of the fiscal year and statements of cash flow for the then
elapsed portion of the fiscal year, setting forth, in the case of statements of
operations and cash flows, comparative figures for the corresponding periods of
the previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and results
of operations of the Company and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;
(c) prior to the consummation of the Spin-off, copies of the final
form of the Information Statement relating to the Spin-off and copies of the
Company's pro forma condensed balance sheet as of the most recently ended fiscal
quarter and related statement of operations for such period, prepared giving
effect to the Spin-off as if it had occurred on the first day of such period;
(d) concurrently with any delivery of financial statements under
clause (a), (b) or (c) above, a certificate of a Financial Officer of the
Company (i) certifying as to whether a Default has occurred and, if a Default
has occurred, specifying the details thereof and any action taken or proposed to
be taken with respect thereto, (ii) setting forth reasonably detailed
calculations demonstrating compliance with Sections 6.05 and 6.06 and (iii)
stating whether any material change in GAAP or in the application thereof has
occurred since the date of the audited financial statements referred to in
Section 3.04 affecting the Company and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying
such certificate;
(e) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on such
financial statements stating whether they obtained knowledge during the course
of their examination of such financial statements of any Default (which
certificate may be limited to the extent required by accounting rules or
guidelines);
(f) promptly after the same become publicly available, copies of all
periodic and other material reports (other than reports relating to employee
benefit matters or employment plans) and proxy statements filed by the Company
or any Subsidiary with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Company to its share holders generally, as the case may be, and all material
amendments to any of the foregoing; and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Company or any Subsidiary, or compliance with the terms of this Agreement or the
Spin-off Documents, as the Administrative Agent may reasonably request.
SECTION 5.02. Notices of Material Events. The Company will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
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(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the Company
or any Subsidiary thereof that could reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of the Company and its Subsidiaries in an aggregate amount that could
reasonably be expected to result in a Material Adverse Effect; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Company setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Company will, and
will cause each of its Material Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of the business of the Company and its Subsidiaries, taken as a
whole; provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.02.
SECTION 5.04. Payment of Obligations. The Company will, and will cause
each of its Subsidiaries to, pay its obligations, including Tax liabilities,
that, if not paid, could result in a Material Adverse Effect before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Company or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Company will,
and will cause each of its Material Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations; provided that any
such insurance may be maintained through a program of self-insurance to the
extent deemed prudent by the Company in its reasonable business judgment (which
determination shall take into account the self-insurance practices customary
among such companies, to the extent the Company has knowledge thereof without
any investigation).
SECTION 5.06. Books and Records; Inspection Rights. The Company will,
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and will cause each of its Material Subsidiaries to, keep proper books of record
and account in accordance with GAAP (or, the case of a foreign Subsidiary,
generally accepted accounting principles in the jurisdiction of organization of
such foreign Subsidiary). The Company will, and will cause each of its Material
Subsidiaries to, permit any representatives designated by the Administrative
Agent on its own initiative or at the request of the Required Lenders, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION 5.07. Compliance with Laws. The Company will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property (including
ERISA), except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used
only for general corporate purposes, including without limitation back-up for
the Company's commercial paper program. No part of the proceeds of any Loan will
be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations U and X.
ARTICLE 6
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full,
the Company covenants and agrees with the Lenders that:
SECTION 6.01. Liens. The Company will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Company or any Subsidiary
existing on the date hereof and set forth in Schedule 6.01; provided that (i)
such Lien shall not apply to any other property or asset of the Company or any
Subsidiary and (ii) such Lien shall secure only those obligations which it
secures on the date hereof and extensions, renewals, refinancings and
replacements thereof that do not increase the outstanding principal amount
thereof (other than by an amount equal to any costs and expenses incurred in
connection with such extension, renewal, refinancing or replacement);
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(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing on any property
or asset of any Person that becomes a Subsidiary after the date hereof prior to
the time such Person becomes a Subsidiary or any Lien on any asset of any Person
existing at the time such Person is merged into or consolidated with the Company
or a Subsidiary; provided that (i) such Lien is not created in contemplation of
or in connection with such acquisition or such Person becoming a Subsidiary or
such merger, as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Company or any Subsidiary and (iii) such Lien shall
secure only those obligations which it secures on the date of such acquisition
or the date such Person becomes a Subsidiary or the date of such merger, as the
case may be, and extensions, renewals, refinancings and replacements thereof
that do not increase the outstanding principal amount thereof (other than by an
amount equal to any costs and expenses incurred in connection with such
extension, renewal, refinancing or replacement);
(d) any Lien on any asset (i) initially securing Indebtedness incurred
or assumed for the purpose of financing all or any part of the cost of acquiring
or constructing such asset or (ii) securing Indebtedness incurred to extend,
renew, refinance or replace the Indebtedness then secured by such Lien, provided
that (x) such Lien attaches to such asset concurrently with or within 180 days
after the acquisition thereof and (y) the principal amount of Indebtedness
secured by such Lien shall not be increased in connection with any extension,
renewal, refinancing or replacement of such Indebtedness (other than by an
amount equal to any costs and expenses incurred in connection with such
extension, renewal, refinancing or replacement);
(e) any Lien arising in connection with the financing of accounts
receivable by the Company or any of its Subsidiaries, provided that the
uncollected amount of account receivables subject at any time to any such
financing shall not exceed $125,000,000;
(f) any Lien on any property sold or transferred pursuant to a
transaction permitted under Section 6.04;
(g) any Lien in favor of the Company or any Subsidiary granted by the
Company or any Subsidiary in order to secure any intercompany obligations;
(h) any Lien granted or arising in connection with any legal
proceeding to the extent such proceeding has not resulted in an Event of Default
under paragraph (k) of Article 7; and
(i) any Lien to secure Indebtedness and other obligations if, at any
date, immediately after the incurrence thereof, the sum (without duplication) of
all amounts secured by Liens which would not be permitted but for this clause
(i) does not exceed $100,000,000.
SECTION 6.02. Fundamental Changes. (a) The Company will not (i) merge
or consolidate with any other Person or (ii) permit any Designated Subsidiary to
merge or consolidate with any other Person, except that (1) the Company and any
Designated Subsidiaries may merge into or consolidate with each other, (2) the
Spin-off may be consummated, so long as it is consummated in all material
64
respects in accordance with the terms and conditions set forth in the
Information Statement, (3) the Company may merge or consolidate with any other
Person in accordance with subsection (c) and (4) any Designated Subsidiary may
merge or consolidate with any other Person so long as the surviving entity of
such merger or consolidation is a Designated Subsidiary. The Company will not,
and will not permit any Designated Subsidiary to, liquidate or dissolve.
(b) (i) The Company will not sell, transfer, lease or otherwise
dispose of (in one transaction or in a series of transactions) all or
substantially all of the assets of the Company and its consolidated
Subsidiaries, taken as a whole, or all or substantially all of the stock or
other equity interests of any Designated Subsidiary and (ii) the Company will
not permit any Designated Subsidiary to sell, transfer, lease or otherwise
dispose of (in one transaction or in a series of transactions) all or
substantially all of the assets of such Designated Subsidiary and its
subsidiaries, taken as a whole, except (1) the Company and any Designated
Subsidiaries may consummate any transaction described in clause (i) or (ii) with
the Company or any other Designated Subsidiary, (2) the Spin-off may be
consummated, so long as it is consummated in all material respects in accordance
with the terms and conditions set forth in the Information Statement, and (3)
the Company may consummate any transaction described in clause (i) in accordance
with subsection (c).
(c) The Company may consummate any of the transactions described in
clauses (a)(i) and (b)(i) of this Section if (i) the surviving corporation in
any such merger or consolidation or the Person which acquires all or
substantially all of the assets of the Company and its consolidated Subsidiaries
or all or substantially all of the capital stock or other equity interests of a
Designated Subsidiary shall be a corporation organized and existing under the
laws of the United States of America, any state thereof or the District of
Columbia (the "Successor Corporation") and shall expressly assume, pursuant to
documentation in form reasonably satisfactory to the Required Lenders, the due
and punctual payment of the principal of and interest on the Loans and all other
amounts payable under this Agreement and the payment and performance of every
covenant hereof on the part of the Company to be performed or observed; (ii)
immediately after giving effect to such transaction, no Default shall have
occurred and be continuing; and (iii) immediately after giving effect to such
transaction, (x) the Company and its Subsidiaries are in compliance, on a
pro-forma basis, with the covenants contained in Sections 6.05 and 6.06
recomputed as of the last day of the most recently ended fiscal quarter of the
Company, as if such transaction had occurred on the first day of each relevant
period for testing such compliance and (y) the Company shall have delivered to
the Lenders, at least 10 Business Days prior to the consummation of any such
transaction, a certificate of a Financial Officer of the Company certifying that
the condition precedent set forth in clause (iii)(x) with respect to such
transaction will be complied with and setting forth in reasonable detail the
calculations required to demonstrate such compliance and the assumptions used by
the Company to make such calculations.
65
(d) The Company will not permit any Borrowing Subsidiary to merge,
consolidate, liquidate or dissolve unless, in addition to the conditions set
forth in clause (a) of this Section (if applicable), the surviving entity, or
the entity into which such Borrowing Subsidiary liquidates or dissolves, is a
Borrower and assumes all Obligations of such Borrowing Subsidiary.
(e) The Company will not, and will not permit any of its Subsidiaries
to, engage to any material extent in any business other than businesses of the
type conducted by the Company and its Subsidiaries on the Effective Date and the
Spin-off Date and businesses reasonably related or complementary thereto.
SECTION 6.03. Transactions with Affiliates. The Company will not, and
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) on terms and conditions not less favorable to the Company
or such Subsidiary than could be obtained on an arm's-length basis from
unrelated third parties (considering such transactions and all other related
transactions as a whole), (b) transactions between or among the Company and its
Subsidiaries and (c) transactions contemplated by the Spin-off Documents and
consummated in accordance therewith.
SECTION 6.04. Sale and Lease-Back Transactions. The Company will not,
and will not permit any of its Subsidiaries to, directly or indirectly, enter
into any arrangement with any Person (other than a Subsidiary) whereby it shall
sell or transfer any property used or useful in its business, whether now owned
or hereafter acquired, and thereafter rent or lease such property or other
property which it intends to use for substantially the same purpose or purposes
as the property being sold or transferred, except for any such arrangement or
arrangements with an aggregate sale price not exceeding at any time
$100,000,000.
SECTION 6.05. Total Debt to EBITDA Ratio. The Total Debt to EBITDA
Ratio will not exceed 4.0 to 1.0 at the end of any fiscal quarter.
SECTION 6.06. Interest Coverage Ratio. The Interest Coverage Ratio for
any period of four consecutive fiscal quarters of the Company will not be less
than 3.0 to 1.0.
SECTION 6.07. Amendment of Spin-off Documents. The Company will not,
nor will it permit any Subsidiary to, amend, modify or waive any of its rights
under any Spin-off Document, if any such amendment, modification or waiver could
reasonably be expected to have a Material Adverse Effect.
ARTICLE 7
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EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur and
be continuing:
(a) any Borrower shall fail to pay any principal of any Loan of such
Borrower when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan of such
Borrower or any fee or any other amount (other than an amount referred to in
clause (a) of this Article) payable by such Borrower under this Agreement, when
and as the same shall become due and payable, and such failure shall continue
unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of the Company or any Subsidiary in or in connection with this Agreement, any
Borrowing Subsidiary Agreement or any amendment or modification hereof or
thereof, or in any certificate or other document furnished pursuant to or in
connection with this Agreement, any Borrowing Subsidiary Agreement or any
amendment or modification hereof or thereof, shall prove to have been incorrect
in any material respect when made or deemed made;
(d) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02(a), 5.03 (with respect to the
Company's existence), 5.08 or in Article 6;
(e) the Company shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement or any Borrowing Subsidiary
Agreement (other than those specified in clause (a), (b), (c) or (d) of this
Article), and such failure shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent (given at the request of any
Lender) to the Company;
(f) the Company or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and payable (after
giving effect to any grace period applicable thereto);
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity; provided that this
clause (g) shall not apply to (i) secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets securing such
Indebtedness (so long as such Indebtedness is paid when due (or within any
applicable grace period)) or (ii) any Indebtedness that is mandatorily
prepayable prior to the scheduled maturity thereof with the proceeds of the
issuance of capital stock, the incurrence of other Indebtedness or the sale or
other disposition of any assets, so long as such Indebtedness is so prepaid in
full with such proceeds when due (or within any applicable grace period) and
such event shall not have otherwise resulted in an event of default with respect
to such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in
67
respect of the Company or any Material Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Company or any Material Subsidiary or for a substantial
part of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or ordering any
of the foregoing shall be entered;
(i) the Company or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Material Subsidiary or
for a substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Company or any Material Subsidiary shall become unable, admit
in writing or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $30,000,000 (excluding any amount of such judgment as to
which an Acceptable Insurer has acknowledged liability) shall be rendered
against the Company, any Subsidiary or any combination thereof and the same
shall remain undischarged for a period of 60 consecutive days during which
execution shall not be effectively stayed, or any action, which shall not be
effectively stayed, shall be legally taken by a judgment creditor to attach or
levy upon any assets of the Company or any Subsidiary to enforce any such
judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Company and
its Subsidiaries in an aggregate amount that could reasonably be expected to
result in a Material Adverse Effect;
(m) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Article 9 or the guarantee of the Company
hereunder shall not be (or shall be claimed by the Company or any Subsidiary not
to be) valid or in full force and effect;
(n) a Change in Control shall occur;
(o) (i) the Company shall have merged or consolidated with any Person
or any Person shall have acquired all or substantially all of the assets of the
Company and its consolidated Subsidiaries, taken as a whole, or all or
substantially all of the capital stock or other equity interests of any
Designated Subsidiary, (ii) either the Company or the Person with which it is
merging or consolidating or the Person which is acquiring such assets or capital
stock or other equity interests shall at the time of such merger or
consolidation or acquisition
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have been rated by a rating agency and (iii) the Successor Corporation shall not
have in effect a rating of at least Baa1 from Xxxxx'x Investors Service, Inc. or
BBB+ from Standard & Poor's Rating Services on the 90th day following the
consummation of such merger or consolidation or acquisition, as the case may be;
(p) the Spin-off Date shall not have occurred by the 60th day after
the Effective Date;
(q) (i) any Spin-off Document shall cease to be in full force and
effect (or any party thereto shall so assert in writing) or (ii) any party to
any Spin-off Document shall fail to perform its obligations thereunder and such
failure could reasonably be expected to result in a Material Adverse Effect; or
(r) (i) the IRS Ruling shall cease to be in full force and effect or
(ii) the Spin-off shall for any reason cease to qualify as a tax-free
distribution under Section 355 of the Internal Revenue Code;
then, and in every such event (other than an event with respect to any Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may (with the
consent of the Required Lenders), and at the request of the Required Lenders
shall, by notice to the Company, take either or both of the following actions,
at the same or different times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be
due and payable), and thereupon the principal of the Loans so declared to be due
and payable, together with accrued interest thereon and all fees and other
obligations of the Borrowers accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by each Borrower; and in case of any event with
respect to the Company described in clause (h) or (i) of this Article, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrowers accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by each Borrower; and in the case of any event
with respect to any Borrowing Subsidiary described in clause (h) or (i) of this
Article, (i) the eligibility of such Borrowing Subsidiary to borrow shall
thereupon terminate and (ii) the Loans of such Borrowing Subsidiary shall become
immediately due and payable, together with accrued interest thereon and all fees
and other obligations thereunder of such Borrowing Subsidiary accrued
thereunder, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by each Borrowing Subsidiary.
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ARTICLE 8
THE ADMINISTRATIVE AGENT
Each of the Lenders hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Company or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders, and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Company or any of its Subsidiaries that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders or
in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by a
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or any Borrowing
Subsidiary Agreement, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any Borrowing
Subsidiary Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article 4 or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
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The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for any Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all of its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and
powers through their respective Related Parties. The exculpatory provisions of
the preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Company. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Company, to appoint a successor (and, at any time when no Default shall have
occurred and is continuing, with the prior written consent of the Company). If
no successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent which shall be a
bank with an office in New York, New York, or an Affiliate of any such bank.
Upon the acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Company to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Company and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 10.03 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and
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decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
ARTICLE 9
GUARANTEE
In order to induce the Lenders to extend credit hereunder, the Company
hereby irrevocably and unconditionally guarantees, as a primary obligor and not
merely as a surety, the Obligations. The Company further agrees that the due and
punctual payment of the Obligations may be extended or renewed, in whole or in
part, without notice to or further assent from it, and that it will remain bound
upon its Guarantee hereunder notwithstanding any such extension or renewal of
any Obligation.
The Company waives presentment to, demand of payment from and protest
to any Borrowing Subsidiary of any of the Obligations, and also waives notice of
acceptance of its obligations and notice of protest for nonpayment. The
obligations of the Company hereunder shall not be affected by (a) the failure of
any Lender or the Administrative Agent to assert any claim or demand or to
enforce any right or remedy against any Borrowing Subsidiary under the
provisions of this Agreement or otherwise; (b) any rescission, waiver, amendment
or modification of any of the terms or provisions of this Agreement, any
Borrowing Subsidiary Agreement or any other agreement; or (c) the failure of any
Lender to exercise any right or remedy against any Borrowing Subsidiary.
The Company further agrees that its agreement hereunder constitutes a
promise of payment when due (whether or not any bankruptcy or similar proceeding
shall have stayed the accrual or collection of any of the Obligations or
operated as a discharge thereof) and not merely of collection, and waives any
right to require that any resort be had by any Lender to any balance of any
deposit account or credit on the books of any Lender in favor of any Borrower or
any other person.
The obligations of the Company hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, and shall not
be subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever, by reason of the invalidity, illegality or unenforceability of the
Obligations, any impossibility in the performance of the Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of
the Company hereunder shall not be discharged or impaired or otherwise affected
by the failure
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of the Administrative Agent or any Lender to assert any claim or demand or to
enforce any remedy under this Agreement or any other agreement, by any waiver or
modification in respect of any thereof, by any default, failure or delay, wilful
or otherwise, in the performance of the Obligations, or by any other act or
omission which may or might in any manner or to any extent vary the risk of the
Company or otherwise operate as a discharge of the Company or any other Borrower
as a matter of law or equity.
The Company further agrees that its obligations hereunder shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any Obligation is rescinded or must otherwise
be restored by the Administrative Agent or any Lender upon the bankruptcy or
reorganization of any Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which the Administrative Agent or any Lender may have at law or in equity
against the Company by virtue hereof, upon the failure of any Borrowing
Subsidiary to pay any Obligation when and as the same shall become due, whether
at maturity, by acceleration, after notice of prepayment or otherwise, the
Company hereby promises to and will, upon receipt of written demand by the
Administrative Agent, forthwith pay, or cause to be paid, in cash the amount of
such unpaid Obligation. The Company further agrees that if payment in respect of
any Obligation shall be due in a currency other than dollars and/or at a place
of payment other than New York and if, by reason of any Change in Law,
disruption of currency or foreign exchange markets, war or civil disturbance or
similar event, payment of such Obligation in such currency or at such place of
payment shall be impossible or, in the judgment of any applicable Lender, not
consistent with the protection of its rights or interests, then, at the election
of any applicable Lender, the Company shall make payment of such Obligation in
dollars (based upon the applicable exchange rate in effect on the date of
payment) and/or in New York, and shall indemnify such Lender against any losses
or expenses that it shall sustain as a result of such alternative payment.
Upon payment by the Company of any Obligation, each Lender shall, in a
reasonable manner, assign the amount of such Obligation owed to it and so paid
to the Company, such assignment to be pro tanto to the extent to which the
Obligation in question was discharged by the Company, or make such disposition
thereof as the Company shall direct (all without recourse to any Lender and
without any representation or warranty by any Lender).
Upon payment by the Company of any sums as provided above, all rights
of Company against any Borrowing Subsidiary arising as a result thereof by way
of right of subrogation or otherwise shall in all respects be subordinated and
junior in right of payment to the prior indefeasible payment in full of all the
Obligations owed by such Borrowing Subsidiary to the Lenders.
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ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to any Borrower, to it in care of the Company (x) prior to the
Spin-off Date, at Xxx Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxx, XX 00000, Attention of
Treasurer (Telecopy No. 908-665-5032), with a copy to Attention of Chief Legal
Officer at the same address (Telecopy No. 908-665-5827) any (y) on or after the
Spin-off Date, at 00 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention of Xxxxxx
Xxxxxx (Telecopy No. 212-298-7085), with a copy to Attention of Xxxxx Xxxxxxxxx
(Telecopy No. 212-553-0084);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, Agent
Bank Services Group, Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention of Xxxxx Xxxxxx (Telecopy No. (000) 000-0000), with a copy to The
Chase Manhattan Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of
Xxxxx Xxxxxxxxxx (Telecopy No. (000) 000-0000);
(c) if to the London Agent, to it at Chase Manhattan International
Limited, Trinity Tower, 9 Xxxxxx Xxxx Street, London, England E19YT, Attention
of Xxxxx Xxxxxx (Telecopy No. 011-44-171-777-2360), with a copy to The Chase
Manhattan Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx
Xxxxxxxxxx (Telecopy No. (000) 000-0000);
(d) if to the Swingline Lender, to The Chase Manhattan Bank, Agent
Bank Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention of Xxxxx Xxxxxx (Telecopy No. (000) 000-0000), with a copy to
The Chase Manhattan Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention
of Xxxxx Xxxxxxxxxx (Telecopy No. (000) 000-0000); and
(e) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire. Any party hereto may change its
address or telecopy number for notices and other communications hereunder by
notice to the other parties hereto. All notices and other communications given
to any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
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Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by any Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any Borrowing Subsidiary Agreement nor
any provision hereof or thereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Company
and the Required Lenders or by the Company and the Administrative Agent with the
consent of the Required Lenders (and, in the case of a Borrowing Subsidiary
Agreement, the applicable Borrowing Subsidiary); provided that no such agreement
shall (i) increase the Commitment of any Lender without the written consent of
such Lender, (ii) reduce the principal amount of any Loan or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender directly affected thereby, (iii) postpone the scheduled
date of payment of the principal amount of any Loan, or any interest thereon, or
any fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment, without
the written consent of each Lender directly affected thereby, (iv) change
Section 2.17(b) or (c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender or (vi) release the Company from, or limit or condition, its
obligations under Article 9, without the written consent of each Lender;
provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent or the Swingline Lender
hereunder without the prior written consent of the Administrative Agent or the
Swingline Lender, as the case may be.
SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The Company
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of this Agreement or any Borrowing Subsidiary Agreement or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the
75
transactions contemplated hereby or thereby shall be consummated) and (ii) all
reasonable out-of-pocket expenses incurred by the Administrative Agent or any
Lender, including the fees, charges and disbursements of no more than one
counsel for the Administrative Agent and one counsel for the Lenders (unless
representation of the Lenders by the same counsel would be inappropriate due to
actual or potential conflicts of interests among them, in which case the Lenders
shall have right to separate counsel, at the expense of the Company) in
connection with the enforcement or protection of its rights in connection with
this Agreement or any Borrowing Subsidiary Agreement, including its rights under
this Section, or in connection with the Loans made hereunder, including in
connection with any workout, restructuring or negotiations in respect thereof.
(b) The Company shall indemnify the Administrative Agent and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
the fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement or any Borrowing
Subsidiary Agreement or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto or thereto of their respective
obligations hereunder or thereunder or the consummation of the Transactions or
any other transactions contemplated hereby, (ii) any Loan or the use of the
proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Company or any of its
Subsidiaries, or any Environmental Liability related in any way to the Company
or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses result from the gross negligence or wilful misconduct of such
Indemnitee.
(c) To the extent that the Company fails to pay any amount required to
be paid by it to the Administrative Agent or the Swingline Lender under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or the Swingline Lender, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or the Swingline Lender in its capacity as
such.
(d) To the extent permitted by applicable law, no Borrower shall
assert, and each Borrower hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a
76
result of, this Agreement or any Borrowing Subsidiary Agreement or any agreement
or instrument contemplated hereby or thereby, the Transactions, any Loan or the
use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 10.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
(including any Borrowing Subsidiaries) and their respective successors and
assigns permitted hereby, except that no Borrower may assign or otherwise
transfer any of its rights or obligations hereunder or under any Borrowing
Subsidiary Agreement without the prior written consent of each Lender (and any
attempted assignment or transfer by any Borrower without such consent shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment (if any) and the Loans (if any) at the time owing to it);
provided that (i) if contemporaneously with any such proposed assignment, such
Lender (or its Affiliate) assigns to the same proposed assignee a pro rata
portion of such Lender's (or its Affiliate's) rights and obligations under the
Other Credit Agreement (such pro rata portion to be calculated (x) on any date
prior to the date of termination of the Facility Commitments, the Designated
Currency Commitments and the Yen Currency Commitments, on the basis of such
Lender's Commitment hereunder and such Lender's (or its Affiliate's) commitment
under the Other Credit Agreement and (y) thereafter, on the basis of such
Lender's Revolving Credit Exposure hereunder and such Lender's (or its
Affiliate's) commitment under the Other Credit Agreement) (any such proposed
assignment hereunder, a "Pro Rata Assignment"), each of the Company and the
Administrative Agent must give their prior written consent to such Pro Rata
Assignment (which consent shall not be unreasonably withheld) unless the
assignee for such assignment is a Lender or an Affiliate of a Lender, in which
case no such consent shall be required, (ii) if such proposed assignment is not
a Pro Rata Assignment, each of the Company and the Administrative Agent must
give their prior written consent to such proposed assignment (which consent
shall be given in their discretion) unless the assignee for such assignment is
an Affiliate of the assigning Lender, in which case no such consent shall be
required, (iii) except in the case of any assignment to a Lender or an Affiliate
of a Lender or an assignment of the entire remaining amount of the assigning
Lender's Commitment, the amount of the Commitment of the assigning Lender
subject to
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each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 unless each of the Company and the Administrative
Agent otherwise consent, (iv) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, except that this clause (iv) shall not apply
to rights in respect of outstanding Competitive Loans, (v) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500, and
(vi) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; provided further that any
consent of the Company otherwise required under this paragraph shall not be
required if an Event of Default under clause (h) or (i) of Article 7 has
occurred and is continuing with respect to the Company. Upon acceptance and
recording pursuant to paragraph (d) of this Section, from and after the
effective date specified in each Assignment and Acceptance, the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 10.03).
Notwithstanding any other provision of this Agreement, if any Lender shall
assign any of its rights or obligations hereunder to any assignee (including an
Affiliate of such Lender) that, but for this sentence, would be entitled,
immediately following such assignment, to claim a greater amount than such
assigning Lender under Sections 2.14, 2.15, 2.16, such assignee shall not have
the right to claim such greater amount; provided that nothing in this sentence
shall limit the right of any such assignee to make claims (x) for amounts not in
excess of those that could have been claimed by the assigning Lender, (y) to the
extent such claims arise from one or more Changes in Law, or from the
designation of one or more Borrowing Subsidiaries, or (z) from a change in the
office, branch or other place of business from which any payment hereunder is
made by any Borrower, in each case after the date of such assignment. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with and subject to the limitations set forth in,
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrowers shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from
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time to time (the "Register"). The entries in the Register shall be conclusive,
and the Borrowers, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the Company and
any Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of any Borrower, the
Administrative Agent or the Swingline Lender, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrowers, the Administrative 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. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
10.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, each Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.14, 2.15 and 2.16 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.14, 2.15 or 2.16 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Company's prior written consent. A Participant that would be a Foreign Lender if
it were a Lender shall not be entitled to the benefits of Section 2.16 unless
the Company is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrowers, to comply with Section
2.16(e) as though it were a Lender.
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(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any such pledge or assignment to a Federal Reserve Bank,
and this Section shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any
such assignee for such Lender as a party hereto.
(h) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPC") of such Granting Lender, identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Company, the option
to provide to the Company all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrower pursuant to Section 2.01 or
2.04, provided that (i) nothing herein shall constitute a commitment to make any
Loan by any SPC, (ii) if an SPC elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof and (iii) all credit
decisions (including without limitation any decisions with respect to amendments
and waivers) will continue to be made by the Granting Lender. The making of a
Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender
(and, if such Loan is a Competitive Loan, shall be deemed to utilize the
Commitments of all the Lenders) to the same extent, and as if, such Loan were
made by the Granting Lender. Each party hereto hereby agrees that no SPC shall
be liable for any payment under this Agreement for which a Lender would
otherwise be liable, for so long as, and to the extent, the related Granting
Lender makes such payment. In furtherance of the foregoing, each party hereto
hereby agrees that, prior to the date that is one year and one day after the
payment in full of all outstanding senior indebtedness of any SPC, it will not
institute against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or similar proceedings under the laws of the United States or any State thereof.
In addition, notwithstanding anything to the contrary contained in this Section,
any SPC may (i) with notice to, but without the prior written consent of, the
Company or the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to its Granting
Lender in connection with liquidity and/or credit facilities to or for the
account of such SPC to fund such Loans and (ii) subject to the provisions of
Section 10.12, disclose on a confidential basis any non-public information
relating to its Loans to any rating agency, commercial paper dealer or provider
of a surety, guarantee or credit or liquidity enhancement to such SPC.
SECTION 10.05. Survival. All covenants, agreements, representations
and warranties made by the Borrowers herein and in the Borrowing Subsidiary
Agreements and the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon
by the
80
other parties hereto and shall survive the execution and delivery of this
Agreement and the making of any Loans, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any
Default (other than a Default which has been waived in accordance with Section
10.02) or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.14,
2.15, 2.16 and 10.03 and Article 8 shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Commitments or
the termination of this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto (excluding any Borrowing
Subsidiaries), and thereafter shall be binding upon and inure to the benefit of
the parties hereto (including any Borrowing Subsidiaries) and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender 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 to or
for the credit or the account of any Borrower against any of and all the amounts
then due and owing by the Borrower under this Agreement to such Lender,
irrespective of whether or
81
not such Lender shall have made any demand under this Agreement. The rights of
each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, 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 such New
York State 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 the Administrative Agent or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement against any
Borrower or its properties in the courts of any jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which 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 in any court referred to
in paragraph (b) of this Section. 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.
(d) Each party to this Agreement (including any Borrowing
Subsidiaries) irrevocably consents to service of process in the manner provided
for notices in Section 10.01. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner permitted by
law.
SECTION 10.10. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
82
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Company
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Company. For the purposes of this Section, "Information" means
all information received from the Company relating to the Company or its
business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Company. Any Person required to maintain the confidentiality
of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
SECTION 10.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges
83
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
SECTION 10.14. Conversion of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto (including
any Borrowing Subsidiary) agrees, to the fullest extent that it may effectively
do so, that the rate of exchange used shall be that at which in accordance with
normal banking procedures in the relevant jurisdiction the first currency could
be purchased with such other currency on the Business Day immediately preceding
the day on which final judgment is given.
(b) The obligations of each Borrower in respect of any sum due to any
party hereto or any holder of the obligations owing hereunder (the "Applicable
Creditor") shall, notwithstanding any judgment in a currency (the "Judgment
Currency") other than the currency in which such sum is stated to be due
hereunder (the "Agreement Currency"), be discharged only to the extent that, on
the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 10.14 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
SECTION 10.15. European Economic and Monetary Union. (a) Definitions.
In this Section 10.15 and in each other provision of this Agreement to which
reference is made in this Section 10.15 expressly or impliedly, the following
terms have the meanings given to them in this Section 10.15:
"EMU" means economic and monetary union as contemplated in
the Treaty on European Union.
"EMU legislation" means legislative measures of the European
Council for the introduction of, changeover to or operation of a
single or unified European currency (whether known as the euro or
otherwise), being in part the implementation of the third stage of
EMU;
"euro" means the single currency of participating member
states of
84
the European Union;
"euro unit" means the currency unit of the euro;
"national currency unit" means the unit of currency (other
than a euro unit) of a participating member state;
"participating member state" means each state so described
in any EMU legislation; and
"Treaty on European Union" means the Treaty of Rome of March
25, 1957, as amended by the Single Xxxxxxxx Xxx 0000 and the
Maastricht Treaty (which was signed at Maastricht on February 7, 1992,
and came into force on November 1, 1993), as amended from time to
time.
(b) Effectiveness of Provisions. If and to the extent that any
provision of paragraphs (c) to (i) relates to any state (or the currency of such
state) that is not a participating member state on the Effective Date, such
provision shall become effective in relation to such state (and the currency of
such state) at and from the date on which such state becomes a participating
member state.
(c) Redenomination and Eligible Currencies. Each obligation under this
Agreement of a party to this Agreement which has been denominated in the
national currency unit of a participating member state shall be redenominated
into the euro unit in accordance with EMU legislation, provided, that if and to
the extent that any EMU legislation provides that an amount denominated either
in the euro or in the national currency unit of a participating member state and
payable within that participating member state by crediting an account of the
creditor can be paid by the debtor either in the euro unit or in that national
currency unit, each party to this Agreement shall be entitled to pay or repay
any such amount either in the euro unit or in such national currency unit.
(d) Loans. Any Loan in the currency of a participating member state
shall be made in the euro unit.
(e) Payments to the Administrative Agent. Sections 2.06 and 2.17 shall
be construed so that, in relation to the payment of any amount of euro units or
national currency units, such amount shall be made available to the
Administrative Agent in immediately available, freely transferable, cleared
funds to such account with such bank in Frankfurt am Main, Germany (or such
other principal financial center in such participating member state as the
Administrative Agent may from time to time nominate for this purpose) as the
Administrative Agent shall from time to time nominate for this purpose.
(f) Payments by the Administrative Agent to the Lenders. Any amount
payable by the Administrative Agent to the Lenders under this Agreement in the
85
currency of a participating member state shall be paid in the euro unit.
(g) Payments by the Administrative Agent Generally. With respect to
the payment of any amount denominated in the euro or in a national currency
unit, the Administrative Agent shall not be liable to any Borrower or any of the
Lenders in any way whatsoever for any delay, or the consequences of any delay,
in the crediting to any account of any amount required by this Agreement to be
paid by the Administrative Agent if the Administrative Agent shall have taken
all relevant steps to achieve, on the date required by this Agreement, the
payment of such amount in immediately available, freely transferable, cleared
funds (in the euro unit or, as the case may be, in a national currency unit) to
the account with the bank in the principal financial center in the participating
member state which such Borrower or, as the case may be, any Lender shall have
specified for such purpose. In this paragraph (g), "all relevant steps" means
all such steps as may be prescribed from time to time by the regulations or
operating procedures of such clearing or settlement system as the Administrative
Agent may from time to time determine for the purpose of clearing or settling
payments of the euro.
(h) Basis of Accrual. If the basis of accrual of interest or fees
expressed in this Agreement with respect to the currency of any state that
becomes a participating state shall be inconsistent with any convention or
practice in the London Interbank Market or, as the case may be, the Paris
Interbank Market for the basis of accrual of interest or fees in respect of the
euro, such convention or practice shall replace such expressed basis effective
as of and from the date on which such state becomes a participating member
state; provided, that if any Loan in the currency of such state is outstanding
immediately prior to such date, such replacement shall take effect, with respect
to such Loan, at the end of the then current Interest Period.
(i) Rounding. Without prejudice and in addition to any method of
conversion or rounding prescribed by any EMU legislation and without prejudice
to the respective liabilities for indebtedness of any Borrower to the Lenders
and the Lenders to any Borrower under or pursuant to this Agreement, each
reference in this Agreement to a minimum amount (or an integral multiple
thereof) in a national currency unit to be paid to or by the Administrative
Agent shall be replaced by a reference to such reasonably comparable and
convenient amount (or an integral multiple thereof) in the euro unit as the
Administrative Agent may from time to time specify.
(j) Consequential Changes. Each provision of this Agreement shall be
subject to such reasonable changes of construction as the Administrative Agent
may from time to time reasonably specify to be necessary or appropriate to
reflect the introduction of or changeover to the euro in participating member
states in accordance with customary practices in the market.
86
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
THE DUN & BRADSTREET
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Title: Vice President - Treasury and
Investor Relations
87
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------------
Title: Vice President
88
CITIBANK, N.A., individually and as
Syndication Agent
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
89
THE BANK OF NEW YORK, individually
and as Documentation Agent
By: /s/ Xxxxxx Xxxx
---------------------------------------
Title: Vice President
90
BARCLAYS BANK PLC
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Title: Vice President
91
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Title: Senior Vice President
92
SUNTRUST BANK
By: /s/ W. Xxxxx Xxxxxx
---------------------------------------
Title: Vice President
93
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxx X. Toulouse
---------------------------------------
Title: Vice President
94
EXHIBIT A
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the $[ ] Credit Agreement dated as of
September [ ], 2000 (as amended, modified, supplemented or waived, the "Credit
Agreement"), among The Dun & Bradstreet Corporation (to be renamed Moody's
Corporation), the Borrowing Subsidiaries party thereto, the Lenders party
thereto, The Chase Manhattan Bank, as Administrative Agent, Citibank, N.A., as
Syndication Agent, and The Bank of New York, as Documentation Agent. Capitalized
terms used but not defined herein shall have the meanings specified in the
Credit Agreement.
1. The Assignor named below hereby sells and assigns, without
recourse to the Assignor, to the Assignee named below, and the Assignee hereby
purchases and assumes, without recourse to the Assignor, from the Assignor,
effective as of the Assignment Date set forth below, the interests set forth
below (the "Assigned Interest") in the Assignor's rights and obligations under
the Credit Agreement, including, without limitation, the interests set forth
below in the Commitment of the Assignor on the Assignment Date, and all Loans
[(other than Competitive Loans)], owing to the Assignor which are outstanding on
the Assignment Date. The Assignee hereby acknowledges receipt of a copy of the
Credit Agreement. From and after the Assignment Date (i) the Assignee shall be a
party to and be bound by the provisions of the Credit Agreement and, to the
extent of the interests assigned by this Assignment and Acceptance, have the
rights and obligations of a Lender thereunder and (ii) the Assignor shall, to
the extent of the interests assigned by this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
2. This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.16(e) of the Credit Agreement, and (ii) if the Assignee is not already a
Lender under the Agreement, an Administrative Questionnaire in the form provided
by the Administrative Agent.
3. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
95
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment ("Assignment Date"):
96
Facility
Principal Amount Percentage Assigned of
Assigned Commitment (set forth,
(and identifying to at least 8 decimals, as a
information percentage of the Facility
as to individual and the aggregate
Competitive Loans, if Commitments of
any) all Lenders thereunder)
Commitment Assigned: $ %
Revolving Loans: $ %
[Competitive Loans: $ %]
The terms set forth herein
are hereby agreed to:
Accepted (if required):
____________________, as Assignor THE DUN & BRADSTREET
CORPORATION
By:_____________________
Name: By:_____________________
Title: Name:
Title:
____________________, as Assignee
THE CHASE MANHATTAN BANK,
as Administrative Agent,
By:_____________________
Name:
Title: By:_____________________
Name:
Title:
97
EXHIBIT B-1
OPINION OF COUNSEL FOR THE BORROWER
September 11, 2000
To (a) each of the lending institutions (the
"Lenders") listed on Schedule 1 hereto which
are parties on the date hereof to each of
the Credit Agreements, dated as of September
11, 2000 (the "Credit Agreements"), among
The Dun & Bradstreet Corporation (the
"Company"), the Borrowing Subsidiaries party
thereto, the Lenders party thereto, The
Chase Manhattan Bank, as Administrative
Agent (in such capacity, the "Administrative
Agent"), Citibank, N.A., as Syndication
Agent and The Bank of New York, as
Documentation Agent and (b) the
Administrative Agent
Ladies and Gentlemen:
I am President and Secretary of the Company and have acted as counsel
to the Company in connection with the preparation, execution and delivery of the
Credit Agreements. This opinion is delivered to you pursuant to Section 4.01(b)
of each Credit Agreement. Terms used herein which are defined in the Credit
Agreements shall have the respective meanings set forth in the Credit
Agreements, unless otherwise defined herein.
In connection with this opinion, I have examined a copy of each Credit
Agreement signed by the Company and the Administrative Agent. I have also
examined the originals, or duplicates or certified or conformed copies, of such
records, agreements, instruments and other documents and have made such
investigations as I have deemed relevant and necessary in connection with the
opinions expressed herein. As to questions of fact material to this opinion, I
have relied upon certificates of public officials and of officers and
representatives of the Company. In addition, I have examined, and have relied as
to matters of fact, upon the representations made in each Credit Agreement.
98
In rendering the opinions set forth below, I have assumed the
genuineness of all signatures (other than those on behalf of the Company), the
legal capacity of natural persons (other than employees of the Company), the
authenticity of all documents submitted to me as originals, the conformity to
original documents of all documents submitted to me as duplicates or certified
or conformed copies, and the authenticity of the originals of such latter
documents. I have assumed without independent investigation that each Credit
Agreement constitutes a valid and legally binding obligation of the
Administrative Agent and the Lenders.
Based upon and subject to the foregoing, and subject to the
assumptions, qualifications and comments set forth herein, I am of the opinion
that:
1. The Company (a) is a corporation duly organized, validly existing
and in good standing under the laws of Delaware, (b) has all requisite corporate
power and authority to carry on its business as now conducted and (c) except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
2. The Transactions are within the Company's corporate powers and have
been duly authorized by all necessary corporate action and, if required, action
of the stockholders of the Company. Each Credit Agreement has been duly executed
and delivered by the Company.
3. The Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect and
except for such consents, approvals, registrations, filings and other actions
the failure to obtain or make could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect, except that the
Information Statement has not yet become effective and except for certain
filings and approvals related to the transfer of assets and stock of non-United
States entities, which filings and approvals are pending and the failure of
which to make or obtain could not reasonably be expected to result in a Material
Adverse Effect, (b) will not violate any applicable New York law or regulation
or the Delaware General Corporation Law or the charter or by-laws of the Company
or any order of any Governmental Authority applicable to the Company, except for
such violations which, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, (c) will not violate or result
in a default under any indenture, agreement or other instrument binding upon the
Company or any of its Subsidiaries, except for such violations and defaults
which, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, and (d) will not result in the creation or
imposition of
99
any Lien on any asset of the Company or any of its Material Subsidiaries.
4. To my knowledge, after due inquiry, there are no actions, suits or
proceedings by or before any arbitrator or Governmental Authority pending
against or threatened against or affecting the Borrower or any of its
Subsidiaries (a) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect (other than
the Disclosed Matters) or (b) that involve the Credit Agreements or the
Transactions.
5. Neither the Company nor any of its Subsidiaries is a "holding
company" as defined in, or subject to regulations under, the Public Utility
Holding Company Act of 1935.
I am a member of the Bar of the State of New York and I do not express
any opinion on any laws other than the law of the State of New York and the
General Corporation Law of the State of Delaware.
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person, firm or corporation without my prior written
consent.
Very truly yours,
Xxxxx X. Xxxxxxxx
100
Schedule 1
LENDERS
The Chase Manhattan Bank
Citibank, N.A.
The Bank of New York
Barclays Bank PLC
First Union National Bank
SunTrust Bank, Atlanta
The Northern Trust Company
101
EXHIBIT B-2
OPINION OF SPECIAL COUNSEL FOR THE BORROWER
September [ ], 2000
To (a) each of the lending institutions
(the "Lenders") listed on Schedule 1 hereto
which are parties on the date hereof to each
of the Credit Agreements, dated as of September [ ],
2000 (the "Credit Agreements"), among
The Dun & Bradstreet Corporation (the
"Company"), the Borrowing Subsidiaries
party thereto, the Lenders party thereto,
The Chase Manhattan Bank, as Administrative
Agent (in such capacity, the "Administrative
Agent"), Citibank, N.A., as Syndication
Agent, and The Bank of New York, as Documentation
Agent, and (b) the Administrative Agent
Ladies and Gentlemen:
We have acted as special counsel to the Company in connection with the
preparation, execution and delivery of the Credit Agreements. This opinion is
delivered to you pursuant to Section 4.01(b) of each Credit Agreement. Terms
used herein which are defined in the Credit Agreements shall have the respective
meanings set forth in the Credit Agreements, unless otherwise defined herein.
In connection with this opinion we have examined a copy of each Credit
Agreement signed by the Company and the Administrative Agent. We have also
examined the originals, or duplicates or certified or conformed copies, of such
records, agreements, instruments and other documents and have made such other
investigations as we have deemed relevant and necessary in connection with the
opinions expressed herein. As to questions of fact material to this opinion, we
have relied upon certificates of public officials and of officers and
representatives of the Company. In addition, we have examined, and have relied
as to matters of fact upon, the representations made in each Credit Agreement.
102
In rendering the opinions set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as duplicates or certified
or conformed copies, and the authenticity of the originals of such latter
documents. We have assumed without independent investigation that (a) each
Credit Agreement has been duly authorized, executed and delivered by the
Company, (b) the Company has been duly incorporated and is validly existing and
in good standing under the laws of its jurisdiction of incorporation and has the
corporate power and authority to execute, deliver and perform its obligations
under each Credit Agreement, (c) the execution, delivery and performance of each
Credit Agreement by the Company (i) has been duly authorized by all necessary
corporate action on its part, (ii) does not contravene its certificate of
incorporation or by-laws or, except as set forth in paragraph 2 below, violate,
or require any consent not obtained under, any applicable law or regulation or
any order, writ, injunction or decree of any court or other Governmental
Authority binding upon it and (iii) does not violate, or require any consent not
obtained under, any Contractual Obligation applicable to or binding upon it, and
(d) each Credit Agreement constitutes a valid and legally binding obligation of
the Administrative Agent and the Lenders.
Based upon and subject to the foregoing, and subject to the
assumptions, qualifications and comments set forth herein, we are of the opinion
that:
1. Each Credit Agreement constitutes a valid and legally binding
obligation of the Company enforceable against it in accordance with its terms.
2. The execution, delivery and performance of each Credit Agreement by
the Company will not violate any Federal or New York statute or any rule or
regulation issued pursuant to any Federal or New York statute.
3. The Company is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
Our opinion in paragraph 1 above is subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (whether considered in a proceeding in equity or at
law), (iii) an implied covenant of good faith and fair dealing and (iv) the
effects of the possible judicial application of foreign laws or foreign
governmental or judicial action affecting creditors' rights.
We express no opinion with respect to: (a) the effect of any provision
of the Credit Agreements which is intended (i) to establish any standard as the
measure of the performance by any party thereto of such party's obligations of
good faith, diligence, fair dealing, reasonableness or care or (ii) to permit
103
modification thereof only by means of an agreement in writing signed by the
parties thereto; (b) the effect of any provision of the Credit Agreements
insofar as it provides that any Person purchasing a participation from a Lender
or other Person may exercise set-off or similar rights with respect to such
participation or that any Lender or other Person may exercise set-off or similar
rights other than in accordance with applicable law; (c) the effect of any
provision of the Credit Agreements imposing penalties or forfeitures; (d) the
effect of any provision of the Credit Agreements relating to indemnification or
exculpation in connection with violations of any securities laws or relating to
indemnification, contribution or exculpation in connection with willful,
reckless or criminal acts or gross negligence of the indemnified or exculpated
Person or the Person receiving contribution; (e) any provision of the Credit
Agreements which purports to provide for a waiver by the Company of any
immunity, defense or right which may be available to the Company; and (f) any
provision of the Credit Agreements which purports to establish an evidentiary
standard for determinations by any Person.
We note that (A) a New York statute provides that, with respect to a
foreign currency obligation, a court of the State of New York shall render a
judgment or decree in such foreign currency and such judgment or decree shall be
converted into currency of the United States at the rate of exchange prevailing
on the date of entry of such judgment or decree and (B) with respect to a
foreign currency obligation, a United States Federal court in New York may award
judgment in United States dollars, provided that we express no opinion as to the
rate of exchange such court would apply.
In connection with the provisions of each Credit Agreement whereby the
Company submits to the jurisdiction of the courts of the United States of
America located in the State of New York, we note the limitations of 28 U.S.C.
Sections 1331 and 1332 on subject matter jurisdiction of the Federal
courts. In connection with the provisions of each Credit Agreement which relate
to forum selection of the courts of the United States located in the Borough of
Manhattan, City of New York and State of New York (including, without
limitation, any waiver of any objection to venue or any objection that a court
is an inconvenient forum), we note such court's discretion to transfer an action
from one Federal court to another under 28 U.S.C. Section 1404(a).
We are members of the Bar of the State of New York, and we do not
express any opinion concerning any law other than the law of the State of New
York and the Federal laws of the United States of America.
This opinion letter is rendered to you in connection with the
above-described transaction. This opinion letter may not be relied upon by you
for any other purpose, or relied upon by any other person, firm or corporation
without our
104
prior written consent.
Very truly yours,
XXXXXXX XXXXXXX & XXXXXXXX
105
Schedule 1
LENDERS
The Chase Manhattan Bank
Citibank, N.A.
The Bank of New York
Barclays Bank PLC
First Union National Bank
SunTrust Bank, Atlanta
The Northern Trust Company
106
EXHIBIT C
OPINION OF COUNSEL FOR BORROWING SUBSIDIARY
[Effective Date]
To the Lenders and the Administrative
Agent Referred to Below
c/o The Chase Manhattan Bank, as
Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We have acted as counsel for [ ], a [ ] corporation (the
"Borrower"), in connection with (i) the Borrowing Subsidiary Agreement dated as
of _________ (the "Agreement"), among The Dun & Bradstreet Corporation (to be
renamed Moody's Corporation) (the "Company"), the Borrower and The Chase
Manhattan Bank, as Administrative Agent and (ii) the $[ ] Credit Agreement dated
as of September [ ], 2000 (the "Credit Agreement"), among the Company, the
Borrowing Subsidiaries party thereto, the banks and other financial institutions
identified therein as Lenders, The Chase Manhattan Bank, as Administrative
Agent, Citibank, N.A., as Syndication Agent, and The Bank of New York, as
Documentation Agent. Terms defined in the Credit Agreement are used herein with
the same meanings.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The Borrower (a) is a corporation duly organized, validly
existing and in good standing under the laws of [ ], (b) has all requisite
corporate power and authority to carry on its business as now conducted and (c)
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do
107
business in, and is in good standing in, every jurisdiction where such
qualification is required.
2. The Transactions are within the Borrower's corporate powers
and have been duly authorized by all necessary corporate and, if required,
action of the stockholders of the Borrower. The Agreement has been duly executed
and delivered by the Borrower and the Agreement and the Credit Agreement each
constitutes a valid and legally binding obligation of the Borrower, enforceable
in accordance with its respective terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law), an implied
covenant of good faith and fair dealing and the effects of the possible judicial
application of foreign laws or foreign governmental or judicial action affecting
creditors' rights.
3. The Transactions (a) do not require any consent or approval
of, registration or filing with, or any other action by, any Governmental
Authority, except such as have been obtained or made and are in full force and
effect and except for such consents, approvals, registrations, filings and other
actions the failure to obtain or make could not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect, (b)
will not violate any applicable New York law or regulation or the Delaware
General Corporation Law or the charter or by-laws of the Borrower or any order
of any Governmental Authority applicable to the Borrower, except for such
violations which, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, (c) will not violate or result
in a default under any indenture, agreement or other instrument binding upon the
Borrower or any of its Subsidiaries or its assets, except for such violations
and defaults which, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, and (d) will not result in the
creation or imposition of any Lien on any asset of the Borrower or any of its
Material Subsidiaries.
[4. There is no income, stamp or other tax of the government
of [jurisdiction of Borrower], or any taxing authority thereof or therein,
imposed by or in the nature of withholding or otherwise, which is imposed on any
payment to be made by the Borrower pursuant to the Credit Agreement or its
Notes, or imposed on or by virtue of the execution, delivery or enforcement of
the Agreement, the Credit Agreement or its Notes.](1)
--------
(1)Given when Borrowing Subsidiary is a foreign Subsidiary.
108
5. (a) The Borrower is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended and (b) neither the
Borrower nor any of its Subsidiaries is a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
[Qualifications and exceptions reasonably satisfactory to the
Administrative Agent]
We are members of the bar of the [ ] and the foregoing opinion
is limited to the laws of the [ ]. This opinion is rendered solely to you in
connection with the above matter. This opinion may not be relied upon by you for
any other purpose or relied upon by any other Person (other than your successors
and assigns as Lenders and Persons that acquire participations in your Loans)
without our prior written consent.
Very truly yours,
[ ]
109
EXHIBIT D
FORM OF
BORROWING SUBSIDIARY AGREEMENT dated as of
[ ], 20[ ], among THE DUN & BRADSTREET CORPORATION
(to be renamed Moody's Corporation), a Delaware
corporation (the "Company"), [Name of Borrowing
Subsidiary], a [ ] corporation (the "New Borrowing
Subsidiary"), The Chase Manhattan Bank, as
Administrative Agent (the "Administrative Agent"),
Citibank, N.A., as Syndication Agent, and The Bank of
New York, as Documentation Agent.
Reference is hereby made to the $[ ] Credit Agreement dated as
of September [ ], 2000 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among the Company, the Borrowing Subsidiaries
party thereto, the Lenders party thereto, the Administrative Agent, Citibank,
N.A., as Syndication Agent, and The Bank of New York, as Documentation Agent.
Capitalized terms used herein but not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. Under the Credit
Agreement, the Lenders have agreed, upon the terms and subject to the conditions
therein set forth, to make Loans to the Borrowing Subsidiaries, and the Company
and the New Borrowing Subsidiary desire that the New Borrowing Subsidiary become
a Borrowing Subsidiary. The Company represents that it owns or Controls at least
[ ]% of the voting power of the New Borrowing Subsidiary. Each of the Company
and the New Borrowing Subsidiary represent and warrant that the representations
and warranties of the Company in the Credit Agreement relating to the Borrowing
Subsidiary and this Agreement are true and correct on and as of the date hereof.
The Company agrees that the Guarantee of the Company contained in the Credit
Agreement will apply to the Obligations of the New Borrowing Subsidiary. Upon
execution of this Agreement by each of the Company, the New Borrowing Subsidiary
and the Administrative Agent, the New Borrowing Subsidiary shall be a party to
the Credit Agreement and shall constitute a "Borrowing Subsidiary" and a
"Borrower" for all purposes thereof, and the New Borrowing Subsidiary hereby
agrees to be bound by all provisions of the Credit Agreement.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
110
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their authorized officers as of the date first appearing above.
THE DUN & BRADSTREET CORPORATION
By:
-----------------------------------
Name:
Title:
[NAME OF NEW BORROWING SUBSIDIARY]
By:
-----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
-----------------------------------
Name:
Title:
111
EXHIBIT E
FORM OF
BORROWING SUBSIDIARY TERMINATION
The Chase Manhattan Bank,
as Administrative Agent
for the Lenders referred to below
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
[Date]
Ladies and Gentlemen:
The undersigned, The Dun & Bradstreet Corporation (to be
renamed Moody's Corporation) (the "Company"), refers to the $[ ] Credit
Agreement dated as of September [ ], 2000 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Company, the
Borrowing Subsidiaries party thereto, the Lenders party thereto, The Chase
Manhattan Bank, as Administrative Agent, Citibank, N.A., as Syndication Agent,
and The Bank of New York, as Documentation Agent. Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement.
The Company hereby terminates the status of [ ] (the
"Terminated Borrowing Subsidiary") as a Borrowing Subsidiary under the Credit
Agreement. [The Company represents and warrants that no Loans made to the
Terminated Borrowing Subsidiary are outstanding as of the date hereof and that
all amounts payable by the Terminated Borrowing Subsidiary in respect of
interest and/or fees (and, to the extent notified by the Administrative Agent or
any Lender, any other amounts payable under the Credit Agreement) pursuant to
the Credit Agreement have been paid in full on or prior to the date hereof.]
[The Company acknowledges that the Terminated Borrowing Subsidiary shall
continue to be a Borrowing Subsidiary until such time as all Loans made to the
Terminated Borrowing Subsidiary shall have been prepaid and all amounts payable
by the Terminated Borrowing Subsidiary in respect of interest and/or fees (and,
to the extent notified by the Administrative Agent or any Lender, any other
amounts payable under the Credit Agreement) pursuant to the Credit Agreement
shall have been paid in full, provided that the Terminated Borrowing Subsidiary
shall not have the right to make further Borrowings, under the Credit
Agreement.]
112
This instrument shall be construed in accordance with and
governed by the laws of the State of New York.
Very truly yours,
THE DUN & BRADSTREET CORPORATION
By:
-----------------------------------
Name:
Title:
113
EXHIBIT F
FORM OF
NON-BANK CERTIFICATE
Reference is made to the credit Agreement, dated as of September [ ],
2000 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") among The Dun & Bradstreet Corporation (to be renamed
Moody's Corporation), a Delaware corporation (the "Company"), the several banks
and other financial institutions from time to time parties thereto, The Chase
Manhattan Bank, as Administrative Agent, Citibank, N.A., as Syndication Agent,
and The Bank of New York, as Documentation Agent. Capitalized terms used but not
defined herein shall have the meanings set forth in the Credit Agreement.
_________________ (the "Lender") is provided this certificate pursuant
to subsection 2.16(e) of the Credit Agreement. The Lender hereby represents and
warrants that:
1. The Lender is the sole record and beneficial owner of the Loans or
the obligations evidenced by Note(s) in respect of which it is providing this
certificate.
2. The Lender is not a "bank" for purposes of Section 881(c)(3)(A) of
the Internal Revenue Code of 1986, as amended (the "Code"). In this regard, the
Lender further represents and warrants that:
(a) the Lender is not subject to regulatory or other legal
requirements as a bank in any jurisdiction; and
(b) the Lender has not been treated as a bank for purposes of any
tax, securities law or other filing or submission made to any
governmental Authority, any application made to a rating agency or
qualification for any exemption from tax, securities law or other legal
requirements;
3. The Lender is not a 10-percent shareholder of the Company within the
meaning of Section 881(c)(3)(B) of the Code; and
4. The Lender is not a controlled foreign corporation receiving
interest from a related person within the meaning of Section 881(c)(3)(C) of the
Code.
114
IN WITNESS WHEREOF, the undersigned has duly executed this certificate.
Dated: ___________ [NAME OF LENDER]
By:
----------------------------
Name:
Title:
115
EXHIBIT G
ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 20__ among [The Dun & Bradstreet
Corporation (to be renamed Moody's Corporation)] (the "Company"), [NAME OF BANK]
(the "Bank") and The Chase Manhattan Bank, as Administrative Agent (the
"Administrative Agent").
WHEREAS, this Assumption Agreement (the "Agreement") relates to the
Credit Agreement dated as of September [ ], 2000 among the Company, the
Borrowing Subsidiaries party thereto, the Lenders party thereto, the
Administrative Agent, Citibank, N.A., as Syndication Agent, and The Bank of New
York, as Documentation Agent (as amended from time to time, the "Credit
Agreement");
WHEREAS, as permitted by Section 2.08(d) of the Credit Agreement, the
Company proposes to increase the aggregate amount of the Facility Commitments;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assumed Commitment. Effective as of the date hereof, the
Bank hereby [increases its existing Facility Commitment from $[ ] to $[ ]](2)
[assumes a Facility Commitment equal to $[ ]](3) (the "Assumed Commitment").
[From and after the date hereof, the Bank shall be a party to and bound by the
provisions of the Credit Agreement and, to the extent of the Assumed Commitment,
all the rights and obligations of a Lender under the Credit Agreement.](4)
[SECTION 3. Revolving Loans. The Bank shall make a Revolving Loan to
the Company on the date hereof in accordance with Section 2.06 in an amount
--------
(2) If the Bank is an existing Lender.
(3) If the Bank is not an existing Lender.
(4) If the Bank is not an existing Lender.
116
equal to such Bank's pro rata share of the principal amount of all outstanding
Revolving Loans on the date hereof after giving effect to the Assumed
Commitment.](5)
[SECTION 4. Additional Documentation. The Bank, upon execution of this
Agreement, shall deliver to the Administrative Agent, [any documentation
required to be delivered by the Bank pursuant to Section 2.16(e) of the Credit
Agreement,](6)[and an Administrative Questionnaire in the form provided by the
Administrative Agent](7).]
SECTION 5. Representations of the Company. The Company hereby confirms
that (a) the increase in the aggregate amount of the Facility Commitments and
the transactions set forth herein have been duly authorized by all necessary
corporate action and (b) at the time of and immediately after giving effect to
the increase in the aggregate amount of the Facility Commitments and the
transactions set forth herein, (i) the representations and warranties of the
Company set forth in the Credit Agreement are true and correct on and as of the
date hereof and (ii) no Default has occurred and is continuing.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
--------
(5) If Loans are outstanding on the effective date of this Agreement.
(6) If the Bank is a Foreign Lender.
(7) If the Bank is not an existing Lender.
117
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[NAME OF BANK]
By: _________________________
Name:
Title:
THE DUN & BRADSTREET
CORPORATION
By: __________________________
Name:
Title:
THE CHASE MANHATTAN BANK
By: __________________________
Name:
Title:
