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Exhibit 4.3
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364-DAY CREDIT AGREEMENT
dated as of
September 11, 2000
among
THE NEW D&B 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
$175,000,000 REVOLVING CREDIT AND COMPETITIVE ADVANCE
FACILITY
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TABLE OF CONTENTS
Page
ARTICLE 1
Definitions
Section 1.01. Defined Terms................................................. 1
Section 1.02. Classification of Loans and Borrowings........................ 18
Section 1.03. Terms Generally............................................... 19
Section 1.04. Accounting Terms; GAAP........................................ 19
ARTICLE 2
The Credits
Section 2.01. Commitments................................................... 20
Section 2.02. Loans and Borrowings.......................................... 20
Section 2.03. Requests for Revolving Borrowings............................. 21
Section 2.04. Competitive Bid Procedure..................................... 22
Section 2.05. Intentionally Omitted......................................... 24
Section 2.06. Funding of Borrowings......................................... 24
Section 2.07. Interest Elections............................................ 25
Section 2.08. Termination, Reduction and Increase of Commitments............ 26
Section 2.09. Repayment of Loans; Evidence of Debt.......................... 27
Section 2.10. Prepayment of Loans........................................... 28
Section 2.11. Fees.......................................................... 29
Section 2.12. Interest...................................................... 30
Section 2.13. Alternate Rate of Interest.................................... 31
Section 2.14. Increased Costs............................................... 31
Section 2.15. Break Funding Payments........................................ 33
Section 2.16. Taxes......................................................... 34
Section 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs...................................................... 35
Section 2.18. Mitigation Obligations; Replacement of Lenders................ 37
Section 2.19. Borrowing Subsidiaries........................................ 38
ARTICLE 3
Representations and Warranties
Section 3.01. Organization; Powers.......................................... 38
Section 3.02. Authorization; Enforceability................................. 38
Section 3.03. Governmental Approvals; No Conflicts.......................... 39
Section 3.04. Financial Condition; No Material Adverse Change............... 39
Section 3.05. Properties.................................................... 40
Section 3.06. Litigation and Environmental Matters.......................... 40
Section 3.07. Compliance with Laws and Agreements........................... 41
Section 3.08. Investment and Holding Company Status......................... 41
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Section 3.09. Taxes......................................................... 41
Section 3.10. ERISA......................................................... 41
Section 3.11. Disclosure.................................................... 42
Section 3.12. Subsidiaries.................................................. 42
Section 3.13. Use of Proceeds............................................... 42
Section 3.14. Solvency...................................................... 42
ARTICLE 4
Conditions
Section 4.01. Effective Date................................................ 43
Section 4.02. Each Credit Event............................................. 44
Section 4.03. Each Borrowing Subsidiary Credit Event........................ 45
ARTICLE 5
Affirmative Covenants
Section 5.01. Financial Statements and Other Information.................... 46
Section 5.02. Notices of Material Events.................................... 47
Section 5.03. Existence; Conduct of Business................................ 48
Section 5.04. Payment of Obligations........................................ 48
Section 5.05. Maintenance of Properties; Insurance.......................... 48
Section 5.06. Books and Records; Inspection Rights.......................... 48
Section 5.07. Compliance with Laws.......................................... 49
Section 5.08. Use of Proceeds............................................... 49
ARTICLE 6
Negative Covenants
Section 6.01. Liens......................................................... 49
Section 6.02. Fundamental Changes........................................... 51
Section 6.03. Transactions with Affiliates.................................. 52
Section 6.04. Sale and Lease-Back Transactions.............................. 52
Section 6.05. Total Debt to EBITDA Ratio.................................... 52
Section 6.06. Interest Coverage Ratio....................................... 53
ARTICLE 7
Events of Default
ARTICLE 8
The Administrative Agent
ARTICLE 9
Guarantee
ARTICLE 10
Miscellaneous
Section 10.01. Notices...................................................... 60
Section 10.02. Waivers; Amendments.......................................... 61
Section 10.03. Expenses; Indemnity; Damage Waiver........................... 62
Section 10.04. Successors and Assigns....................................... 63
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Section 10.05. Survival..................................................... 67
Section 10.06. Counterparts; Integration; Effectiveness..................... 67
Section 10.07. Severability................................................. 68
Section 10.08. Right of Setoff.............................................. 68
Section 10.09. Governing Law; Jurisdiction; Consent to Service of
Proces.............................................................. 68
Section 10.10. Waiver of Jury Trial......................................... 69
Section 10.11. Headings..................................................... 69
Section 10.12. Confidentiality.............................................. 69
Section 10.13. Interest Rate Limitation..................................... 70
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SCHEDULES:
Schedule 2 01 -- Commitments
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
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 NEW D&B
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 S&P, (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 Commitments on such date of determination; provided
that, if any Revolving Credit Exposures remain outstanding and the Commitments
shall have been terminated, the Aggregate Utilization Percentage on and after
such date shall be deemed to be in excess of 50%.
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"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 Percentage" means, with respect to any Lender, the percentage
of the total Commitments represented by such Lender's Commitment. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, (i) for the period from the
Effective Date to but excluding the date (the "Determination Date") that is the
earlier of (A) the date on which both S&P and Fitch have in effect a rating for
the CP Index Debt (a "CP Rating") and (B) November 10, 2000, (x) with respect to
any Eurodollar Revolving Loan, a rate per annum of 0.18%, and (y) with respect
to the facility fees payable pursuant to Section 2.11, a rate per annum of .07%,
and (ii) on and after the Determination Date, with respect to any Eurodollar
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 "Eurodollar Spread" or "Facility Fee Rate", as the case may be,
based upon the CP Rating by S&P and Fitch, respectively, in effect on the
Determination Date; provided that if Moody's has in effect a CP Rating on or
prior to the Determination Date (as defined below), then all references to Fitch
in this definition shall be deemed to be references to Moody's and all
references to Fitch ratings in the following table shall be deemed to be
references to the comparable Moody's ratings:
==========================================================================================
CATEGORY 1 CATEGORY 2 CATEGORY 3
CP RATING: A-1 and F-1 A-1 or F-1 A-2 and F-2
FACILITY FEE RATE .060% .070% .080%
EURODOLLAR SPREAD .165% .180% .220%
==========================================================================================
For purposes of the foregoing, (i) if, on the Determination Date, either
S&P or Fitch shall not have in effect a CP Rating, then the Applicable Rate
shall be the rate set forth in the Category that is one number higher than the
Category applicable to the CP Rating in effect; and (ii) if, on the
Determination Date, neither S&P nor Fitch shall have in effect a CP Rating, then
the Applicable Rate shall be the rate set forth in Category 3.
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"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).
"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 made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect or (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.
"Borrowing Date" means any Business Day specified in a notice pursuant to
Section 2.03 or 2.04 as a date on which the relevant Borrower requests Loans to
be made hereunder.
"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 when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"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,
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which obligations are required to be classified and accounted for as capital
leases 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 Loans
or Competitive Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans 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
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Commitment, as applicable.
The initial aggregate amount of the Commitments is $175,000,000.
"Company" means The New D&B Corporation, a Delaware corporation
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(which will be renamed The Dun & Bradstreet 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.
"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 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.
"CP Index Debt" means unsecured commercial paper of the Company that is
not guaranteed by any other Person or subject to any other credit enhancement.
"D&B" means The Dun & Bradstreet Corporation, a Delaware corporation
(which will be renamed Moody's Corporation in connection with the Spin-off), and
its successors.
"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 Subsidiary" means (i) Dun & Bradstreet 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.
"Discontinued Companies" means Moody's and its subsidiaries.
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"Distribution Agreement" means the Distribution Agreement between 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.
"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, (e) losses (net
of income taxes) resulting from the operations of the Discontinued Companies
(assuming that the Discontinued Companies owned such operations during such
period), but only to the extent such operations are designated as discontinued
operations and continue to be designated as discontinued operations in the
Company's financial statements and (f) 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 (i) extraordinary gains
and (ii) income (net of income taxes) resulting from the operations of the
Discontinued Companies (assuming that the Discontinued Companies owned such
operations during such period), but only to the extent such operations are
designated as discontinued operations and continue to be designated as
discontinued operations in the Company's financial statements.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 10.02).
"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
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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,
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.
"Eurodollar", 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.
"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
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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 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 D&B, the
borrowing subsidiaries party thereto, the lenders party thereto, The Chase
Manhattan Bank, as administrative agent, Citibank, N.A., as syndication agent,
and ▇▇▇▇▇▇ 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 D&B, 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.
"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 selected by it.
"Financial Officer" of any Person means the chief financial officer,
principal accounting officer, treasurer or controller of such Person.
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"Fitch" means Fitch IBCA, Duff & ▇▇▇▇▇▇.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
Eurodollar 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.
"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 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.
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"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 Memorandum
dated August, 2000 relating to the Company and the Transactions.
"Information Statement" means the Preliminary Information Statement of
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. For purposes of
determining the "Interest Coverage Ratio" for any period ended prior to
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September 30, 2001, "Interest Expense" shall be calculated by giving effect to
the Spin-off as if it had occurred on the first day of 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, (iii) the portion
of any rents payable under capital leases allocable to interest expense in
accordance with GAAP and (iv) minority interest financing expense of D&B
Investors, L.P. and Duns Licensing Associates, L.P. 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 Payment Date" means (a) with respect to any ABR Loan, the last
day of each March, June, September and December, (b) with respect to any
Eurodollar 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 Eurodollar 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 and (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 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.
"Interest Period" means (a) with respect to any Eurodollar 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 Eurodollar Borrowing only, such next succeeding Business Day would fall in
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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
Eurodollar 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).
"Lenders" means the Persons listed on Schedule 2.01 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.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow ▇▇▇▇▇ 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 in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits 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 Eurodollar Borrowing for
such Interest Period shall be the rate at which the Administrative Agent is
offered dollar deposits of $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.
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"Loans" means the loans made by the Lenders to the Borrowers pursuant to
this Agreement.
"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 $50,000,000. 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 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 the date that falls one year after the Revolver
Termination Date (or, if such date is not a Business Day, the next succeeding
Business Day).
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"Moody's" means ▇▇▇▇▇'▇ Investors Services, Inc.
"Moody's Assets" has the meaning set forth in the Distribution Agreement.
"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 Assets" has the meaning set forth in the Distribution Agreement.
"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 Five-Year 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;
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(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 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
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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.
"Revolver Termination Date" means the date that is 364 days after the
date hereof.
"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.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"Revolving Period" means the period from and including the Effective Date
to but excluding the earlier of (i) the Revolver Termination Date and (ii) the
date of termination of the Commitments pursuant to Section 2.08 or Article 7.
"S&P" means Standard & Poor's Rating Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"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 D&B to the Company of all of D&B's and its
subsidiaries' right, title and interest in the New D&B Assets, (ii) the transfer
by the Company and its subsidiaries to D&B and its subsidiaries of all of the
Company'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
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August 31, 2000.
"Statutory Reserve Rate" means 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 the Board to which the relevant Lender is subject, for
eurocurrency funding (currently referred to as "Eurodollar Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar 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.
"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).
"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
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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. "Total Debt" for
purposes of the "Total Debt to EBITDA Ratio" at any date prior to the Spin-off
Date shall be calculated by giving effect to the Spin-off as if it had occurred
on such date.
"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.
"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 "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar 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,
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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 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 1.0.4. 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.
ARTICLE 2
THE CREDITS
SECTION 2.0.1. Commitments. Subject to the terms and conditions set forth
herein, each Lender, severally and not jointly, agrees to make Revolving Loans,
denominated in dollars, to any Borrower from time to time during the Revolving
Period in an aggregate principal amount that will not result in (a) such
Lender's Revolving Credit Exposure exceeding such Lender's Commitment or (b) the
sum of the total Revolving Credit Exposures plus the total Competitive Loan
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Exposures exceeding the total Commitments. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrowers may borrow,
prepay and reborrow Revolving Loans.
SECTION 2.0.2. Loans and Borrowings. (a) Each Revolving Loan shall be
made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. Each Competitive Loan
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 Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the applicable Borrower
may request in accordance herewith and (ii) each Competitive Borrowing shall be
comprised entirely of Eurodollar Competitive Loans or Fixed Rate Loans as the
applicable Borrower may request in accordance herewith. Each Lender at its
option may make any Eurodollar 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 Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $5,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments. Each Competitive
Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $5,000,000. 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 ten Eurodollar 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.
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SECTION 2.0.3. Requests for Revolving Borrowings. To request a Revolving
Borrowing, a Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before the date of the proposed
Borrowing or (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. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
in a form approved by the Administrative 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 Eurodollar
Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest Period
to be applicable thereto, which shall be a period contemplated by the
definition of the term "Interest Period"; 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.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar 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 Administrative 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 2.0.4. Competitive Bid Procedure. (a) Subject to the terms and
conditions set forth herein, from time to time during the Revolving 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 Commitments. To request
Competitive Bids, a Borrower shall notify the Administrative Agent of such
request by telephone, in the case of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, four Business Days before the date of the
proposed Borrowing and, in the case of a Fixed Rate Borrowing, not later than
10:00 a.m., New York City time, one Business Day 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
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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
Administrative Agent of a written Competitive Bid Request in a form approved by
the Administrative 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 Eurodollar 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
(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.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative 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
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurodollar Competitive Borrowing, not later than 9:30
a.m., New York City time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (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) and
(iii) the Interest Period applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the relevant
Borrower
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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
Administrative Agent by telephone, confirmed by telecopy in a form reasonably
approved by the Administrative Agent, whether and to what extent it has decided
to accept or reject each Competitive Bid, in the case of a Eurodollar
Competitive Borrowing, not later than 10:30 a.m., New York City time, three
Business Days before the date of the proposed Competitive Borrowing, and in the
case of a Fixed Rate Borrowing, not later than 10:30 a.m., New York City time,
on the proposed date of the 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 Competitive 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 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 (vA 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 $5,000,000; provided further that if a Competitive
Loan must be in an amount less than $5,000,000 because of the provisions of
clause (iv) above, such Competitive Loan may be for a minimum of $1,000,000, 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 $1,000,000 in a manner
determined by such Borrower. A notice given by any Borrower pursuant to this
paragraph shall be irrevocable.
(e) The Administrative 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 2.0.5. Intentionally Omitted.
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(e) The Administrative 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 2.0.5. Intentionally Omitted.
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SECTION 2.0.6. 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 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the relevant Borrower by promptly (but in no event later than 1:00 p.m., New
York City time) 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 and 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 to such other account as may be specified in
the applicable Borrowing Request or Competitive Bid Request.
(b) Unless the Administrative 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 Administrative Agent such Lender's share of such
Borrowing, the Administrative 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 Administrative Agent,
then the applicable Lender and each Borrower severally agree to pay to the
Administrative 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
Administrative Agent, at (i) in the case of such Lender, the Federal Funds
Effective Rate or (ii) in the case of such Borrower, the interest rate
applicable to ABR Loans. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included in such
Borrowing and the Administrative Agent shall return to such Borrower any amount
(including interest) paid by the Borrower to the Administrative Agent pursuant
to this paragraph with respect to such amount.
SECTION 2.0.7. Interest Elections. (a) Each Revolving Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurodollar 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 Eurodollar 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
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Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, a Borrower shall
notify the Administrative Agent of such election by telephone by the time that 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
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar 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 Eurodollar 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
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 Eurodollar 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. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative 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
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may be converted to or continued as a Eurodollar Borrowing and (ii) unless
repaid, each Eurodollar Revolving Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.0.8. Termination, Reduction and Increase of Commitments. (a)
Unless previously terminated, the Commitments shall terminate on the Revolver
Termination Date.
(b) Prior to the Revolver Termination Date, the Company may at any
time terminate, or from time to time reduce, the 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 the 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 Commitments.
(c) The Company shall notify the Administrative Agent of any election
to terminate or reduce the 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
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 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
Commitments shall be permanent. Each reduction of the Commitments shall be made
ratably among the Lenders in accordance with their respective Commitments.
(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 Commitments in
multiples of $500,000 up to an aggregate amount not to exceed $87,500,000. Any
such increase shall apply, at the option of the Company, (x) to the Commitment
of one or more Lenders, if such Lender or Lenders consent to such increase, or
(y) to the creation of new 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
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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 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 Commitments
pursuant to this Section 2.08(d), Schedule 2.01 hereto shall be automatically
amended to reflect such increase. It is understood that any increase in the
amount of the Commitments pursuant to this Section 2.08(d) shall not constitute
an amendment or modification of this Agreement pursuant to Section 10.02.
SECTION 2.0.9. 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 and (ii) to the Administrative Agent for
the account of each Lender the then unpaid principal amount of each Competitive
Loan of such Borrower on the earlier of (A) the last day of the Interest Period
applicable to such Loan and (B) the Revolver Termination Date.
(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 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
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(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 (b) 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) The relevant Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment and (ii) 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. 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 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. Each prepayment of a
Revolving Borrowing shall be applied ratably to 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 Commitment of such Lender (whether
used or unused) during the period from and including the date hereof to but
excluding the earlier of (x) the Revolver Termination Date and (y) the date on
which the Commitments are terminated; provided that, if such Lender continues to
have any Revolving Credit Exposure on such date, then such facility fee shall
continue to accrue on the daily amount of such Lender's Revolving Credit
Exposure from and including such date to but excluding the date such Lender
ceases to have any Revolving Credit 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 later of the date on which the Commitments terminate and
the date on which such Lender ceases to have any Revolving Credit Exposure,
commencing on the first such date to occur after the date hereof; provided that
any
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facility fees accruing after the Maturity Date 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 .10%
per annum on the average daily outstanding amount of the Revolving Credit
Exposure of such Lender, for each day the Aggregate Utilization Percentage
exceeds 50%. 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 shall
bear interest at a rate per annum equal to the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at a rate per annum equal to (i) in the case of a Eurodollar Revolving Loan, the
LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate, or (ii) in the case of a Eurodollar 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 Maturity Date), accrued interest on the principal
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amount repaid or prepaid shall be payable on the date of such repayment or
prepayment, (iii) in the event of any conversion of any Eurodollar 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 on the Maturity Date.
(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 Eurodollar 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,
in the case of a Eurodollar Competitive Loan, the Lender that is required to
make such Loan) 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 Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the 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 Eurodollar Borrowing shall be
ineffective, and any Eurodollar Borrowing so requested to be continued shall be
converted to an ABR Borrowing, (ii) if any Borrowing Request requests a
Eurodollar Revolving Borrowing, such Borrowing shall be made as an ABR Borrowing
and (iii) any request by any Borrower for a Eurodollar Competitive Borrowing
shall be ineffective; provided that if the circumstances giving rise to such
notice do not affect all the Lenders, then requests for Eurodollar Competitive
Borrowings may be made to Lenders 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 Borrowings 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
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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, 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 any other
condition affecting this Agreement or Eurodollar 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 Eurodollar 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
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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
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 Eurodollar 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 Eurodollar Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Eurodollar 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(b) and is revoked in accordance herewith),
(d) the failure to borrow any Eurodollar Competitive Loan after accepting the
Competitive Bid to make such Loan, or (e) the assignment of any Eurodollar 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. In the case of a Eurodollar 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 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 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 dollar deposits 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
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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
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
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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
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) Each Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest or fees or under Section 2.14, 2.15 or
2.16, or otherwise) prior to 1:00 p.m., New York City time, on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made in dollars, to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except that payments pursuant to Sections 2.14,
2.15, 2.16 and 10.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account 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
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of such extension. All Loans hereunder shall be denominated and made, and all
payments hereunder (whether of principal, interest or otherwise) shall be made,
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 resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving 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 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; 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
may, in reliance upon such assumption, 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
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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, at the Federal Funds
Effective Rate.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 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, which consent shall not unreasonably be withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans (other than Competitive 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
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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 3.0.1. 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, 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 3.0.2. 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,
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
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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 3.0.3. 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 3.0.4. Financial Condition; No Material Adverse Change. (a) The
Company has heretofore furnished to the Lenders (i) the combined balance sheet
of D&B at December 31, 1998 and December 31, 1999 and the related combined
statements of operations, shareholders' net investment and cash flows of D&B 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 D&B at June 30, 2000 and the related combined
statements of operations and cash flows for the fiscal quarter and the portion
of the fiscal year ended June 30, 2000, certified by a Financial Officer of D&B.
Such financial statements (including notes thereto) present fairly, in all
material respects, the financial position and results of operations and cash
flows of D&B 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
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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 3.0.5. 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 3.0.6. 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
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 (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
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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 3.0.7. 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 3.0.8. 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 3.0.9. 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
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
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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 which is the earlier of (i) the
Spin-off Date (after giving effect to the Spin-off) and (ii) the date of the
first Borrowing hereunder, (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 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.
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ARTICLE 4
CONDITIONS
SECTION 4.0.1. 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):
(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 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., President and Secretary of the
Company, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 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
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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 D&B and
the shareholders of D&B) as described in the Information Statement shall have
been obtained and shall be in full force and effect. The Administrative Agent
shall have received copies of each such authorization or approval (including
without limitation the IRS Ruling) and each Spin-off Document 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 4.0.2. 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 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.
(c) Solely if such Borrowing is the first Borrowing under this
Agreement, (i) the fact that D&B shall have transferred to the Company
substantially all of the New D&B Assets on the terms described in the
Information Statement and (ii) the Company shall have delivered to the Lenders a
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certificate of a Financial Officer of the Company so certifying. 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 4.0.3. Each Borrowing Subsidiary Credit Event. The obligation of
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 5.0.1. 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 (it being understood that the comparative figures for the 1999 fiscal year
shall reflect
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Moody's and its consolidated subsidiaries as a discontinued operation), all
reported on by Pricewaterhouse Coopers 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 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 (it being understood that the
comparative figures for the relevant portions of the 1999 fiscal year shall
reflect Moody's and its consolidated subsidiaries as a discontinued operation),
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);
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(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 shareholders 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 5.0.2. 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;
(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 5.0.3. 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 5.0.4. 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
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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 5.0.5. 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 5.0.6. Books and Records; Inspection Rights. The Company will,
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 5.0.7. 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 5.0.8. 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.
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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 6.0.1. 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);
(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
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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 6.0.2. 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
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
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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.
(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 date of execution of
this Agreement and businesses reasonably related or complementary thereto.
SECTION 6.0.3. 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.
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SECTION 6.0.4. 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
$250,000,000.
SECTION 6.0.5. 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 6.0.6. 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.
ARTICLE 7
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
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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 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 $50,000,000 (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
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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 have been rated by a rating agency and (iii) the
Successor Corporation shall not have in effect a rating of at least Baa1 from
▇▇▇▇▇'▇ or BBB+ from S&P 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; or
(q) (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,
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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.
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
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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.
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
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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
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
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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 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
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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.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1. 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 at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, 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);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, Agent
Bank Services Group, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to The
Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
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(c) 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
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
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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 hereunder without the prior written consent
of the Administrative Agent.
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 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
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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 under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent 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 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
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 Revolver Termination Date, on the basis of such Lender's Commitment
hereunder and such Lender's (or its Affiliate's) commitment under the
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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 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
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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 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 or the
Administrative Agent, 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
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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.
(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
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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 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
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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 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
67
73
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 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
68
74
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 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.
69
75
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 NEW D&B CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: President
70
76
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
71
77
THE CITIBANK, N.A., individually and as
Syndication Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
72
78
THE BANK OF NEW YORK, individually and
as Documentation Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Title: Vice President
73
79
BANK OF MONTREAL
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Director
74
80
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
75
81
BARCLAYS BANK, PLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
76
82
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Title: Senior Vice President
77
83
HSBC BANK USA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
78
84
SUNTRUST BANK
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
79
85
THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇ ▇. Toulouse
-----------------------------------
Title: Vice President
80
86
SCHEDULE 2.01
----------------------------------------------------------------------------------
Commitments
-----------
----------------------------------------------------------------------------------
Lender Commitment
------ ----------
----------------------------------------------------------------------------------
The Chase Manhattan Bank $25,000,000.00
----------------------------------------------------------------------------------
Citibank, N.A. $22,500,000.00
----------------------------------------------------------------------------------
The Bank of New York $22,500,000.00
----------------------------------------------------------------------------------
Bank of Montreal $15,000,000.00
----------------------------------------------------------------------------------
Bank of Tokyo - Mitsubishi Trust Company $15,000,000.00
----------------------------------------------------------------------------------
Barclays Bank PLC $15,000,000.00
----------------------------------------------------------------------------------
First Union National Bank $15,000,000.00
----------------------------------------------------------------------------------
HSBC Bank USA $15,000,000.00
----------------------------------------------------------------------------------
SunTrust Bank, Atlanta $15,000,000.00
----------------------------------------------------------------------------------
The Northern Trust Company $15,000,000.00
----------------------------------------------------------------------------------
$175,000,000.00
----------------------------------------------------------------------------------
81
87
SCHEDULE 3.06
Disclosed Matters
LEGAL PROCEEDINGS
New D&B is involved in legal proceedings of a nature considered normal to
its business. In the opinion of management, although the outcome of such legal
proceedings cannot be predicted with certainty, the ultimate liability of New
D&B in connection with such legal proceedings will not have a material adverse
effect on New D&B's financial position, results of operations and cash flows.
In addition to the matters referred to above, on July 29, 1996,
Information Resources, Inc. ("IRI") filed a complaint in the United States
District Court for the Southern District of New York, naming as defendants the
corporation then known as "The Dun & Bradstreet Corporation"(which corporation
subsequently was renamed ▇.▇. ▇▇▇▇▇▇▇▇▇ Corporation and herein is referred to as
"Donnelley"), ▇.▇. ▇▇▇▇▇▇▇ Company (a subsidiary of ACNielsen Corporation) and
I.M.S. International, Inc. (a subsidiary of Cognizant Corporation). At the time
of the filing of the complaint, each of the other defendants was a subsidiary of
Donnelley. The complaint alleges various violations of United States antitrust
laws, including purported violations of Sections 1 and 2 of the ▇▇▇▇▇▇▇ Act
arising from tying arrangements, agreements with retailers and other customers,
predatory pricing practices and other matters alleged by IRI. In addition to the
foregoing claims, the complaint alleges a claim of tortious interference with a
contract and a claim of tortious interference with a prospective business
relationship. These claims relate to the acquisition by defendants of Survey
Research Group Limited ("SRG"). IRI alleges SRG violated an alleged agreement
with IRI when it agreed to be acquired by the defendants and that the defendants
induced SRG to breach that agreement. IRI's complaint alleges damages in excess
of $350 million, which amount IRI has asked to be trebled under antitrust laws.
IRI also seeks punitive damages in an unspecified amount.
On October 15, 1996, defendants moved for an order dismissing all claims
in the complaint. On May 6, 1997, the United States District Court for the
Southern District of New York issued a decision dismissing IRI's claim of
attempted monopolization in the United States, with leave to replead within 60
days. The Court denied defendants' motion with respect to the remaining claims
in the complaint. On June 3, 1997, defendants filed an answer denying the
material allegations in IRI's complaint, and ▇.▇. ▇▇▇▇▇▇▇ Company ("ACN") filed
a counterclaim alleging that IRI had made false and misleading statements about
its services and commercial activities. On July 7, 1997, IRI filed an Amended
and Restated Complaint repleading its alleged claim of monopolization in the
United States and realleging its other claims. By notice of motion dated August
18, 1997,
82
88
defendants moved for an order dismissing the amended claim. On December 1, 1997,
the Court denied the motion. Discovery in this case is ongoing. On December 22,
1999, defendants filed a motion for partial summary judgment seeking to dismiss
IRI's non-U.S. antitrust claims. On July 12, 2000, the Court granted the motion
dismissing claims of injury suffered from activities in foreign markets where
IRI operates through subsidiaries or companies owned by joint ventures or
"relationships" with local companies.
In November 1996, Donnelley completed the 1996 Distribution. On October
28, 1996, in connection with the 1996 Distribution, Cognizant, ACNielsen
Corporation ("ACNielsen") and Donnelley entered into the Indemnity and Joint
Defense Agreement. See the "Risk Factors" section of the Information Statement
for a description of this agreement.
In June 1998, Donnelley completed the 1998 Distribution. In connection
with the 1998 Distribution, D&B and Donnelley entered into an agreement whereby
D&B has assumed all potential liabilities of Donnelley arising from the IRI
action and agreed to indemnify Donnelley in connection with such potential
liabilities.
During 1998, Cognizant separated into two new companies, IMS Health
Incorporated ("IMS Health") and ▇▇▇▇▇▇▇ Media Research, Inc. ("NMR"). IMS Health
and NMR are each jointly and severally liable for all Cognizant liabilities
under the Indemnity and Joint Defense Agreement.
Under the terms of the 1996 Distribution Agreement, as a condition to the
1998 Distribution, D&B undertook to be jointly and severally liable with
Donnelley to Cognizant and ACNielsen. Under the terms of the 1998 Distribution
Agreement, as a condition to the Distribution, New D&B is required to undertake
to be jointly and severally liable with D&B to Donnelley for D&B's obligations
under the 1998 Distribution Agreement, including the liabilities relating to the
IRI action. However, under the Distribution Agreement, as between themselves,
each of New D&B and Moody's will agree to be responsible for 50% of any payments
to be made in respect of the IRI action under the 1998 Distribution Agreement or
otherwise, including any legal fees or expenses related thereto.
Management is unable to predict at this time the final outcome of the IRI
action or whether the resolution of such matter could materially affect New
D&B's results of operations, cash flows or financial position.
83
89
SCHEDULE 3.12
Subsidiaries Effective September 8, 2000 Jurisdiction Percentage
---------------------------------------- ------------ ----------
Ownership
---------
New D&B Inc. Delaware 100%
Subsidiaries Effective as of the Spin-off Date Jurisdiction Percentage
---------------------------------------------- ------------ ----------
Ownership
---------
84
90
AB Svensk Handelstidning Justitia Sweden 100%
ACI Acquisition Inc. Delaware 100%
Alpha Mi A.E. Greece 27%
Arrebnac Pty. Ltd. Australia 100%
Beheer en Beleggingsmaatschappij Stivaco B.V. Netherlands 100%
Bilans Service SNC (France) France 34%
Business Ratios Ltd. England 100%
Campbells Consumer Enquiries Pty. Ltd South Africa 20%
College Mercantile Pty. Ltd. Australia 100%
Consorzio Manifatturieri srl Italy 100%
Corinthian Holdings, Inc. Delaware 100%
Corinthian Leasing Corporation Delaware 100%
D&B Acquisition Corp. Delaware 100%
D&B Data & Services s.r.l. Italy 100%
D&B Espana S.A. Spain 100%
D&B Europe Limited England 100%
D & B Group Ltd. Delaware 100%
D&B Holdings (UK) Limited England 100%
D&B Information Services (M) Sdn. Bhd. Malaysia 100%
D&B International Consultant (Shanghai) Co. Ltd. Peoples Republic of 100%
China
D&B Investors L.P. Delaware 71.615%
D&B Property Holdings, Inc. Delaware 100%
D&B Schimmelpfeng-Unterstuzungskasse GmbH Germany 100%
D&B Transitory Limited England 100%
Dataquest Europe Ltd. England 100%
DBS Medium Systems Ireland (Ireland) Ireland 100%
DBS Moyens Systems S.A. (France) France 100%
DNB-PA Holdings Corporation Nevada 100%
Dun & Bradstreet (Australia) Group Pty. Ltd. Australia 100%
Dun & Bradstreet (Australia) Holdings Pty. Australia 100%
Dun & Bradstreet (Australia) Pty. Limited Australia 100%
Dun & Bradstreet (C&EE) Holding ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇%
▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇) ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇ 100%
Dun & Bradstreet (HK) Limited Hong Kong 100%
Dun & Bradstreet (Israel) Ltd. Israel 100%
Dun & Bradstreet (New Zealand) Limited New Zealand 100%
Dun & Bradstreet (NMR) Limited England 100%
Dun & Bradstreet (Nominees) Pty. Ltd. Australia 100%
Dun & Bradstreet (SCS) B.V. Netherlands 100%
Dun & Bradstreet (Singapore) Pte. Ltd. Singapore 100%
Dun & Bradstreet (Switzerland) AG Switzerland/Delaware 100%
Dun & Bradstreet (U.K.) Pension Plan Trustee Company Ltd. England 100%
Dun & Bradstreet B.V. Netherlands 100%
Dun & Bradstreet Bolagsanalys AB Sweden 100%
Dun & Bradstreet C.A. Venezuela 100%
Dun & Bradstreet C.I.S. Russia 100%
▇▇
▇▇
▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇ 100%
Dun & Bradstreet Canada Holding, Ltd Canada 100%
Dun & Bradstreet Computer Leasing, Inc. Delaware 100%
Dun & Bradstreet Credit Control, Ltd. Delaware 100%
Dun & Bradstreet Credit Reporting (Israel) Israel 100%
Dun & Bradstreet Danmark Holding A/S Denmark 100%
Dun & Bradstreet de Mexico, S.A. de C.V. Mexico 100%
Dun & Bradstreet Denmark A/S (Denmark) Denmark 100%
Dun & Bradstreet Deutschland GmbH Germany/Delaware 100%
Dun & Bradstreet Do Brasil, Ltda. Brazil/Delaware 100%
Dun & Bradstreet East-Vent Ltd. Delaware 100%
Dun & Bradstreet Ekonomiforlaget AB Sweden 100%
Dun & Bradstreet Europe, Ltd. Delaware 100%
Dun & Bradstreet European Business Information Center B.V. Netherlands 100%
Dun & Bradstreet European Outsourcing Centre B.V. Netherlands 100%
Dun & Bradstreet Finance, Ltd. England 100%
Dun & Bradstreet Finland OY Finland 100%
Dun & Bradstreet France S.C.S. France 100%
Dun & Bradstreet Holding Norway A/S Norway 100%
Dun & Bradstreet Holdings B.V. Netherlands 100%
Dun & Bradstreet Holdings-France, Inc. Delaware 100%
Dun & Bradstreet Holdings-Holland, Inc. Delaware 100%
Dun & Bradstreet Hungaria Informacio Szolgaltato Korlatolt Hungary 100%
Felelosegu Tarasag
Dun & Bradstreet, Inc. Delaware 100%
Dun & Bradstreet Information Services Ges.mbH Austria 100%
Dun & Bradstreet Information Services India Pvt. Ltd. India 100%
Dun & Bradstreet International, Ltd. Delaware 100%
Dun & Bradstreet Japan Ltd. Japan 100%
Dun & Bradstreet Limited Ireland 100%
Dun & Bradstreet Limited England 100%
Dun & Bradstreet Ltda. Chile 100%
Dun & Bradstreet Management S.A.S. France 100%
Dun & Bradstreet Marketing Pty. Ltd. Australia 100%
Dun & Bradstreet Marketing Services N.V.-S.A. Belgium 100%
Dun & Bradstreet Nordic AB Sweden 100%
Dun & Bradstreet Norge A/S Norway 100%
Dun & Bradstreet Outsourcing Services N.V. Belgium 100%
Dun & Bradstreet Poland sp. zo.o. Poland 100%
Dun & Bradstreet Portfolios-Holland, Inc. Delaware 100%
Dun & Bradstreet Portugal, Ltda. Portugal 100%
Dun & Bradstreet Program Management Services, Inc. Delaware 100%
Dun & Bradstreet Properties Ltd. England 100%
Dun & Bradstreet Pty. Ltd. Australia 100%
Dun & Bradstreet RMS Franchise Corporation Delaware 100%
Dun & ▇▇▇▇▇▇▇▇▇▇ ▇.▇. Argentina 100%
Dun & ▇▇▇▇▇▇▇▇▇▇ ▇.▇. Peru 100%
Dun & ▇▇▇▇▇▇▇▇▇▇ ▇.▇. Uruguay 100%
Dun & Bradstreet, S.A. Sociedad de Informacion Crediticia Mexico 25%
86
92
Dun & Bradstreet S.p.A. Italy 100%
Dun & Bradstreet-Servicos De Consultadoria E Apoio A Portugal 100%
Gestao De Contas Correntes, Lda.
Dun & Bradstreet Software Services Australia Holdings Pty. Australia 100%
Ltd.
Dun & Bradstreet Software Services Australia Pty. Limited Australia 100%
Dun & Bradstreet Software Services Holdings S.A. France 100%
Dun & Bradstreet Software Services Iberica S.A. Spain 100%
Dun & Bradstreet Software Services International, Inc. Georgia 100%
Dun & Bradstreet Soliditet A/S Norway 100%
Dun & Bradstreet spol s. r. o. Czech Republic 100%
Dun & Bradstreet Sverige AB Sweden 100%
Dun & Bradstreet Telecenter B.V. Netherlands 100%
Dun & Bradstreet Teleupdate Center GmbH Germany 100%
Dun & Bradstreet Unit Trust Australia 100%
Dun & Bradstreet Ventures, Inc. Delaware 100%
Dun & Bradstreet Zimbabwe (Private) Limited Zimbabwe 100%
Dunbrad, Inc. Delaware 100%
Duns Holding, Inc. Delaware 100%
Duns Investing Corporation Delaware 100%
Duns Investing VI Corporation Delaware 100%
Duns Investing VII Corporation Delaware 100%
Duns Investing VIII Corporation Delaware 100%
Duns Investing IX Corporation Delaware 100%
Dunsgate Limited England 100%
DunsNet, Inc. Delaware 100%
E-Data Ventures Ltd. England 100%
Eastvaal Credit Bureau (Pty) Ltd. South Africa 20%
▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. Delaware 100%
Enniscale Holdings Ltd. England 100%
Enshrine CA Pty. Ltd. Australia 50%
Fillupar Leasing Partnership Delaware 98%
Giprec S.A.R.L. France 20%
Greyling's Credit Control (Pty) Ltd. (South Africa) South Africa 20%
Ifico-▇▇▇▇▇▇▇ ▇▇ Switzerland 100%
Information Trust Corporation (Pty.) Ltd. South Africa 20%
Infotrade N.V.-S.A. Belgium 100%
ITC Namibia (Pty) Ltd. South Africa 20%
ITC-Vision (Pty.) Ltd. South Africa 20%
Kosmos Business Information Limited England 100%
▇▇▇▇▇▇▇▇▇ & Dodge (Argentina) Argentina 100%
▇▇▇▇▇▇▇▇▇ & Dodge Mexico (Mexico) Mexico 100%
Microband of Virginia, Inc. Virginia 50%
▇▇▇▇▇▇▇▇▇▇.▇▇▇ Limited England 100%
MSA Do Brasil Sistemas E Metados Ltda. Brazil 100%
N.V. Dun & Bradstreet-Eurinform S.A. Belgium/Delaware 100%
Orefro L'Informazione S.p.A. Italy 100%
Palmetto Assurance Ltd. Bermuda 100%
Perfect Data International N.V. Netherlands Antilles 100%
87
93
RMS Holdings, Inc. Delaware 100%
S&W S.A.S. France 100%
Schimmelpfeng Inkasso GmbH Germany 100%
Sicev-Societa Italiana Consulenze e Valutazioni S.p.A. Italy 20%
SingBizInfo Pte. Ltd. Singapore 45%
Socogestion S.A.S. France 100%
▇▇▇▇▇▇ (Ireland) Ltd. England 100%
▇▇▇▇▇▇' Directories Ltd. England 100%
▇▇▇▇▇▇' Ltd. England 100%
The D&B Companies of Canada Ltd. Canada 100%
The Dun & Bradstreet Corporation Foundation (non-profit) Delaware 100%
Trans Union Espana Credit Bureau, S.L. Spain 50%
Veri-Cheque (Pty.) Ltd. South Africa 20%
Vlaamse Bedrifsdatabank N.V.-S.A. Belgium 100%
Who Owns Whom Ltd. England 100%
88
94
SCHEDULE 6.01
Existing Liens
--------------
None.
95
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 New D&B Corporation (to be renamed The Dun & Bradstreet
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.
96
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment ("Assignment Date"):
97
Percentage Assigned of
Facility Principal Amount Commitment (set forth,
-------- Assigned to at least 8 decimals, as a
(and identifying percentage of the Facility
information and the aggregate
as to individual Commitments of
Competitive Loans, if all Lenders thereunder)
any)
Commitment Assigned: $ %
Revolving Loans: $ %
[Competitive Loans: $ %]
The terms set forth herein
are hereby agreed to:
Accepted (if required):
, as Assignor THE NEW D&B CORPORATION
--------------------
By:
---------------------
Name: By:
Title: ---------------------
Name:
Title:
, as Assignee
--------------------
THE CHASE MANHATTAN BANK,
as Administrative Agent,
By:
---------------------
Name: By:
Title: ---------------------
Name:
Title:
98
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 New D&B
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
99
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.
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,
100
except for such violations which, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, (c) will not
violate or result in a default under any indenture, agreement or other
instrument binding upon the Company or any of its Subsidiaries, except for such
violations and defaults which, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, and (d) will not
result in the creation or imposition of any Lien on any asset of the Company or
any of its Material Subsidiaries.
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,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
101
Schedule 1
LENDERS
The Chase Manhattan Bank
Citibank, N.A.
The Bank of New York
Bank of Montreal
Bank of Tokyo - Mitsubishi Trust Company
Barclays Bank PLC
First Union National Bank
HSBC Bank USA
SunTrust Bank, Atlanta
The Northern Trust Company
102
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 New D&B
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
103
representations made in each Credit Agreement.
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
104
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
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
105
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
prior written consent.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
106
Schedule 1
LENDERS
The Chase Manhattan Bank
Citibank, N.A.
The Bank of New York
Bank of Montreal
Bank of Tokyo - Mitsubishi Trust Company
Barclays Bank PLC
First Union National Bank
HSBC Bank USA
SunTrust Bank, Atlanta
The Northern Trust Company
107
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
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 New D&B Corporation
(to be renamed The Dun & Bradstreet 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 business in, and is in good standing in, every jurisdiction where such
qualification is required.
1
108
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.
2
109
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,
[ ]
3
110
EXHIBIT D
FORM OF
BORROWING SUBSIDIARY AGREEMENT dated as of [ ],
20[ ], among THE NEW D&B CORPORATION (to be renamed The Dun
& Bradstreet 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.
111
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 NEW D&B CORPORATION
By:
-------------------------------------
Name:
Title:
[NAME OF NEW BORROWING
SUBSIDIARY]
By:
-------------------------------------
Name:
Title:
THE CHASE MANHATTAN
BANK,
as Administrative Agent
By:
-------------------------------------
Name:
Title:
112
EXHIBIT E
FORM OF
BORROWING SUBSIDIARY TERMINATION
The Chase Manhattan Bank,
as Administrative Agent
for the Lenders referred to below
▇/▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[Date]
Ladies and Gentlemen:
The undersigned, The New D&B Corporation (to be renamed The Dun &
Bradstreet 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
113
have the right to make further Borrowings, under the Credit Agreement.]
114
This instrument shall be construed in accordance with and governed
by the laws of the State of New York.
Very truly yours,
THE NEW D&B CORPORATION
By:
-------------------------------------
Name:
Title:
115
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 New D&B Corporation (to be renamed The Dun &
Bradstreet 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.
116
IN WITNESS WHEREOF, the undersigned has duly executed this certificate.
Dated: ___________ [NAME OF LENDER]
By:
-------------------------------------
Name:
Title:
4
117
EXHIBIT G
ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 20__ among [The New D&B Corporation (to
be renamed The Dun & Bradstreet 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 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 Commitment from $[ ] to $[ ]](2)
[assumes a 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)
-------------------
(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.
118
[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 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 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 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.
119
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 NEW D&B CORPORATION
By:
---------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
---------------------------
Name:
Title: