1
EXHIBIT 4.1
[CONFORMED COPY]
U.S. $300,000,000
CREDIT AGREEMENT
Dated as of January 31, 1996
Among
THE WASHINGTON POST COMPANY
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITIBANK, N.A.
as Administrative Agent
and
WACHOVIA BANK OF GEORGIA, N.A.
as Managing Agent
2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Computation of Time Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.03. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.02. Making the Revolving Credit Advances and Swing Line Advances . . . . . . . . . . . . . . . . . . 17
SECTION 2.03. The Competitive Bid Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.04. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.05. Termination, Reduction or Increase of the Commitments . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.06. Repayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.07. Interest on Revolving Credit Advances and Swing Line Advances . . . . . . . . . . . . . . . . . . 27
SECTION 2.08. Interest Rate Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.09. Optional Conversion of Revolving Credit Advances . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.10. Optional Prepayments of Revolving Credit Advances and Swing Line Advances . . . . . . . . . . . . 29
SECTION 2.11. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.12. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.13. Payments and Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.14. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.15. Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 2.16. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03 . . . . . . . . . . . . . . . . . 36
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing and Each Swing Line
Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.04. Determinations Under Section 3.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3
ii
PAGE
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.02. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.03. Financial Covenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.02. Agent's Reliance, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 7.03. Citibank and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 7.04. Lender Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 7.05. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 7.06. Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 7.07. Co-Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 8.02. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 8.03. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
4
iii
PAGE
SECTION 8.04. Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 8.05. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.06. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.07. Assignments and Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.08. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 8.09. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 8.10. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 8.11. Jurisdiction, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 8.12. Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
5
iv
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 5.02(a) - Existing Liens
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Assumption Agreement
Exhibit E - Form of Opinion of Counsel for the Borrower
6
CERDIT AGREEMENT
Dated as of January 31, 1996
The Washington Post Company, a Delaware corporation (the
"Borrower"), the banks, financial institutions and other institutional lenders
(the "Initial Lenders") listed on the signature pages hereof, Citibank, N.A.
("Citibank"), as administrative agent (the "Agent") for the Lenders (as
hereinafter defined), and Wachovia Bank of Georgia, N.A. ("Wachovia"), as
managing agent (the "Co-Agent") for the Lenders, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Advance" means a Revolving Credit Advance, a Swing Line
Advance or a Competitive Bid Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under
common control with such Person or is a director or executive
officer of such Person. For purposes of this definition, the
term "control" (including the terms "controlling", "controlled
by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 10% or more
of the Voting Stock of such Person or to direct or cause the
direction of the management and policies of such Person, whether
through the ownership of Voting Stock, by contract or otherwise.
"Agent's Account" means the account of the Agent maintained
by the Agent at Citibank with its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. 3685-2248, Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance and such Lender's Eurodollar Lending Office in
the case of a Eurodollar Rate Advance and, in the case of a
Competitive Bid Advance, the office of such Lender notified by
such Lender to the Agent as its Applicable Lending Office with
respect to such Competitive Bid Advance.
"Applicable Margin" means, as of any date, a percentage per
annum determined by reference to the Performance Level in effect
on such date as set forth below:
7
2
===========================================================================
Performance Level Applicable Margin for Applicable Margin for
Base Rate Advances Eurodollar Rate Advances
===========================================================================
I 0% 0.115%
---------------------------------------------------------------------------
II 0% 0.130%
---------------------------------------------------------------------------
III 0% 0.160%
---------------------------------------------------------------------------
IV 0% 0.250%
---------------------------------------------------------------------------
V 0% 0.300%
===========================================================================
"Applicable Percentage" means, as of any date, a
percentage per annum determined by reference to the Performance
Level in effect on such date as set forth below:
======================================
Performance Level Applicable
Percentage
======================================
I 0.060%
--------------------------------------
II 0.070%
--------------------------------------
III 0.090%
--------------------------------------
IV 0.125%
--------------------------------------
V 0.175%
======================================
8
3
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an Eligible Assignee,
accepted and approved by the Agent and approved by the Borrower,
in substantially the form of Exhibit C hereto.
"Assuming Lender" means an Eligible Assignee not previously
a Lender that becomes a Lender hereunder pursuant to Section
2.05(b).
"Assumption Agreement" means an agreement in substantially
the form of Exhibit D hereto by which an Eligible Assignee
agrees to become a Lender hereunder pursuant to Section 2.05(b),
in each case agreeing to be bound by all obligations of a Lender
hereunder.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all
times be equal to the higher of:
(a)the rate of interest announced publicly by Citibank
in New York, New York, from time to time, as Citibank's
base rate; and
(b)1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing, a Swing
Line Borrowing or a Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks are
not required or authorized by law to close in New York City and,
if the applicable Business Day relates to any Eurodollar Rate
Advances, on which dealings are carried on in the London
interbank market.
"Commercial Paper Rating" means, as of any date, the lowest
rating that has been most recently announced by either S&P or
▇▇▇▇▇'▇, as the case may be, for short term public unsecured
senior debt issued by the Borrower. For purposes of the
foregoing, (a) if any rating established by S&P or ▇▇▇▇▇'▇ shall
be changed, such change shall be effective as of the date on
which such change is first announced publicly by the rating
agency making such change; and (b) if S&P or ▇▇▇▇▇'▇ shall
change the basis on which ratings are established, each
reference to the Commercial Paper Rating announced by S&P or
▇▇▇▇▇'▇, as the case may be, shall refer to the then equivalent
rating by S&P or ▇▇▇▇▇'▇, as the case may be.
9
4
"Commitment" means, with respect to any Lender at any time
(i) the amount set forth opposite such Lender's name on the
signature pages hereof, (ii) if such Lender has become a Lender
hereunder pursuant to an Assumption Agreement, the amount set
forth as its Commitment in such Assumption Agreement or (iii) if
such Lender has entered into one or more Assignments and
Acceptances, set forth for such Lender in the Register
maintained by the Agent pursuant to Section 8.07(d), as such
amount may be increased, terminated or reduced, as the case may
be, at or prior to such time pursuant to Section 2.05.
"Commitment Date" has the meaning specified in Section
2.05(b)(i).
"Commitment Increase" has the meaning specified in Section
2.05(b)(i).
"Competitive Bid Advance" means an advance by a Lender to
the Borrower as part of a Competitive Bid Borrowing resulting
from the competitive bidding procedure described in Section 2.03
and refers to a Fixed Rate Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders
whose offer to make one or more Competitive Bid Advances as part
of such borrowing has been accepted under the competitive
bidding procedure described in Section 2.03.
"Competitive Bid Note" means a promissory note of the
Borrower (bearing an original or facsimile signature) payable to
the order of any Lender, in substantially the form of Exhibit
A-2 hereto, evidencing the indebtedness of the Borrower to such
Lender resulting from a Competitive Bid Advance made by such
Lender.
"Confidential Information" means information that the
Borrower furnishes to the Agent, Co-Agent or any Lender in a
writing designated as confidential, but does not include any
such information that is or becomes generally available to the
public or that is or becomes available to the Agent or such
Lender from a source other than the Borrower that is not, to the
best of the Agent's, the Co-Agent's or such Lender's knowledge,
acting in violation of a confidentiality agreement with or for
the benefit of the Borrower.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Continuing Directors" means individuals who at the date
hereof are directors of the Borrower and any other director (i)
whose election or nomination was approved by a majority of the
then Continuing Directors or (b) who was nominated by management
at a time when Continuing Directors constituted a majority of
the board of directors of the Borrower.
10
5
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into
Revolving Credit Advances of the other Type pursuant to Section
2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of
property or services (other than trade payables not overdue by
more than 120 days incurred in the ordinary course of such
Person's business), (c) all obligations of such Person evidenced
by notes, bonds, debentures or other similar instruments, (d)
all obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect
to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such
property), (e) all obligations of such Person as lessee under
leases that have been or should be, in accordance with GAAP,
recorded as capital leases, (f) all obligations, contingent or
otherwise, of such Person in respect of acceptances, letters of
credit or similar extensions of credit, (g) all Debt of others
referred to in clauses (a) through (f) above or clause (h) below
guaranteed directly or indirectly in any manner by such Person,
or in effect guaranteed directly or indirectly by such Person
through an agreement (1) to pay or purchase such Debt or to
advance or supply funds for the payment or purchase of such
Debt, (2) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Debt or
to assure the holder of such Debt against loss, (3) to supply
funds to or in any other manner invest in the debtor (including
any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered)
or (4) otherwise to assure a creditor against loss, and (h) all
Debt referred to in clauses (a) through (g) above secured by (or
for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed or
become liable for the payment of such Debt.
"Default" means any Event of Default or any event that
would constitute an Event of Default but for the requirement
that notice be given or time elapse or both.
"Domestic Lending Office" means, with respect to any
Initial Lender, the office of such Lender specified as its
"Domestic Lending Office" opposite its name on Schedule I hereto
and, with respect to any other Lender, the office of such Lender
specified as its "Domestic Lending Office" in the Assumption
Agreement or in the Assignment and Acceptance pursuant to which
it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the
Agent.
11
6
"Downgrade" means, with respect to any Lender, the lowest
rating that has been most recently announced for any class of
non-credit enhanced long-term senior unsecured debt issued by
such Lender is lower than BBB- by S&P or Baa3 by ▇▇▇▇▇'▇.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate
of a Lender; (iii) a commercial bank organized under the laws of
the United States, or any State thereof, and having total assets
in excess of $5,000,000,000; (iv) a savings and loan association
or savings bank organized under the laws of the United States,
or any State thereof, and having total assets in excess of
$5,000,000,000; (v) a commercial bank organized under the laws
of any other country that is a member of the Organization for
Economic Cooperation and Development or has concluded special
lending arrangements with the International Monetary Fund
associated with its General Arrangements to Borrow or of the
Cayman Islands, or a political subdivision of any such country,
and having total assets in excess of $5,000,000,000 so long as
such bank is acting through a branch or agency located in the
United States or in the country in which it is organized or
another country that is described in this clause (v); (vi) the
central bank of any country that is a member of the Organization
for Economic Cooperation and Development; and (vii) any other
Person approved by the Agent and the Borrower, such approval not
to be unreasonably withheld or delayed; provided, however, that
neither the Borrower nor an Affiliate of the Borrower shall
qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand,
demand letter, claim, notice of non-compliance or violation,
notice of liability or potential liability, consent order or
consent agreement relating in any way to any Environmental Law,
Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any
governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b)
by any governmental or regulatory authority or any third party
for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or
foreign statute, law, ordinance, rule, regulation, code, order,
judgment or decree relating to pollution or protection of the
environment, health, safety or natural resources, including,
without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required
under any Environmental Law.
12
7
"ERISA" means the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of
Title IV of ERISA is a member of the Borrower's controlled
group, or under common control with the Borrower, within the
meaning of Section 414(b) or (c) of the Internal Revenue Code
or, solely for purposes of Sections 302 and 303 of ERISA and
Section 412 of the Internal Revenue Code, is treated as a single
employer under Section 414(b), (c), (m) and (o) of the Internal
Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect
to any Plan unless the 30-day notice requirement with respect to
such event has been waived by the PBGC, or (ii) the requirements
of subsection (1) of Section 4043(b) of ERISA (without regard to
subsection (2) of such Section) are met with a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan,
and an event described in paragraph (9), (10), (11), (12) or
(13) of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to a Plan;
(c) the provision by the administrator of any Plan of a notice
of intent to terminate such Plan pursuant to Section 4041(a)(2)
of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the
cessation of operations at a facility of the Borrower or any
ERISA Affiliate in the circumstances described in Section
4062(e) of ERISA; (e) the withdrawal by the Borrower or any
ERISA Affiliate from a Multiple Employer Plan during a plan year
for which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (f) the conditions for the imposition of a
lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described in
Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, a
Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Eurocurrency Reserve Requirements" means the aggregate of
the maximum reserve percentages (including any marginal,
special, emergency or supplemental reserves) expressed as a
decimal established by the Board of Governors of the Federal
Reserve System and any other banking authority to which any
Lender is subject and applicable to Eurocurrency Liabilities, or
any similar category of assets or liabilities
13
8
relating to eurocurrency fundings. Eurocurrency Reserve
Requirements shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Eurodollar Lending Office" means, with respect to any
Initial Lender, the office of such Lender specified as its
"Eurodollar Lending Office" opposite its name on Schedule I
hereto and, with respect to any other Lender, the office of such
Lender specified as its "Eurodollar Lending Office" in the
Assumption Agreement or in the Assignment and Acceptance
pursuant to which it became a Lender (or, if no such office is
specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving
Credit Borrowing, an interest rate per annum equal to the
average (rounded upward to the nearest whole multiple of 1/16 of
1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered to
the principal office of each of the Reference Banks in London,
England by prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of
such Interest Period in an amount substantially equal to such
Reference Bank's Eurodollar Rate Advance comprising part of such
Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period.
The Eurodollar Rate for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Revolving Credit
Borrowing shall be determined by the Agent on the basis of
applicable rates furnished to and received by the Agent from the
Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of Section
2.08.
"Eurodollar Rate Advance" means a Revolving Credit Advance
that bears interest as provided in Section 2.07(a)(ii).
"Events of Default" has the meaning specified in Section
6.01.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average of
the quotations for such day on such transactions received by the
Agent from three Federal funds brokers of recognized standing
selected by it with the consent of the Borrower.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i).
14
9
"GAAP" has the meaning specified in Section 1.03.
"▇▇▇▇▇▇ Interests" shall mean ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and her
siblings, their descendants and any relative by marriage of the
foregoing, and any trust for the benefit of any of the foregoing
whether as an income or residual beneficiary.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive
materials, asbestos-containing materials, polychlorinated
biphenyls and radon gas and (b) any other chemicals, materials
or substances designated, classified or regulated as hazardous
or toxic under any Environmental Law and any pollutant or
contaminant regulated under the Clean Water Act, 33 U.S.C.
Sections 1251 et seq., or the Clean Air Act, 42 U.S.C. Sections
7401 et seq.
"Increase Date" has the meaning specified in Section
2.05(b)(i).
"Increasing Lender" has the meaning specified in Section
2.05(b)(i).
"Information Memorandum" means the information memorandum
dated December 29, 1995 used by the Agent in connection with the
syndication of the Commitments.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing and each
LIBO Rate Advance comprising part of the same Competitive Bid
Borrowing, the period commencing on the date of such Eurodollar
Rate Advance or LIBO Rate Advance or the date of the Conversion
of any Base Rate Advance into such Eurodollar Rate Advance and
ending on the last day of the period selected by the Borrower
pursuant to the provisions below and, thereafter, with respect
to Eurodollar Rate Advances, each subsequent period commencing
on the last day of the immediately preceding Interest Period and
ending on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months or, if
available to all the Lenders, nine or twelve months, as the
Borrower may, upon notice received by the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior
to the first day of such Interest Period, select; provided,
however, that:
(i) the Borrower may not select any Interest Period
that ends after the Termination Date in effect at the time
of such selection;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same
Revolving Credit Borrowing or for LIBO
15
10
Rate Advances comprising part of the same Competitive Bid
Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day,
the last day of such Interest Period shall be extended to
occur on the next succeeding Business Day, provided,
however, that, if such extension would cause the last day
of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall
occur on the next preceding Business Day; and
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which
there is no numerically corresponding day in the calendar
month that succeeds such initial calendar month by the
number of months equal to the number of months in such
Interest Period, such Interest Period shall end on the
last Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"Lenders" means the Initial Lenders, each Assuming Lender
that shall become a party hereto pursuant to Section 2.05(b) and
each Person that shall become a party hereto pursuant to Section
8.07.
"LIBO Rate" means, for any Interest Period for all LIBO
Rate Advances comprising part of the same Competitive Bid
Borrowing, an interest rate per annum equal to the average
(rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, if such average is not such a multiple) of the rate per
annum at which deposits in U.S. dollars are offered to the
principal office of each of the Reference Banks in London,
England by prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of
such Interest Period in an amount substantially equal to the
amount that would be the Reference Banks' respective ratable
shares of such Borrowing if such Borrowing were to be a
Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period.
The LIBO Rate for any Interest Period for each LIBO Rate Advance
comprising part of the same Competitive Bid Borrowing shall be
determined by the Agent on the basis of applicable rates
furnished to and received by the Agent from the Reference Banks
two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.08.
"LIBO Rate Advances" has the meaning specified in Section
2.03(a)(i).
16
11
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential
arrangement, including, without limitation, the lien or retained
security title of a conditional vendor and any easement, right
of way or other encumbrance on title to real property.
"Margin Stock" has the meaning assigned to such term under
Regulation U of the Board of Governors of the Federal Reserve
System of the United States as from time to time in effect and
all official rulings and interpretations thereunder or thereof.
"Material Adverse Change" means any material adverse change
in the business, financial condition or results of operations of
the Borrower and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect
on (a) the business, financial condition or results of
operations of the Borrower and its Subsidiaries taken as a
whole, (b) the rights and remedies of the Agent or any Lender
under this Agreement or any Note or (c) the ability of the
Borrower to perform its obligations under this Agreement or any
Note.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined
in Section 4001(a)(3) of ERISA, to which the Borrower or any
ERISA Affiliate is making or accruing an obligation to make
contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained
for employees of the Borrower or any ERISA Affiliate and at
least one Person other than the Borrower and the ERISA
Affiliates or (b) was so maintained and in respect of which the
Borrower or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or
were to be terminated.
"Non-Recourse Debt" shall mean Debt of the Borrower or its
Subsidiaries incurred (a) as to which neither the Borrower nor
any of its Subsidiaries (i) provides credit support (including
any undertaking, agreement or instrument which would constitute
Debt) or has given or made other written assurances regarding
repayment or the maintenance of capital or liquidity except such
assurances as may be approved by the Required Lenders (such
approval not to be unreasonably withheld or delayed), (ii) is
directly or indirectly liable or (iii) constitutes the lender
and (b) the obligees of which will have recourse solely to
certain identified assets (the loss of which would not
reasonably be expected to have a Material Adverse Effect) for
repayment of the principal
17
12
of and interest on such Debt and any fees, indemnities,
expenses, reimbursements or other amounts of whatever nature
accrued or payable in connection with such Debt.
"Note" means a Revolving Credit Note or a Competitive Bid
Note.
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"Notice of Swing Line Borrowing" has the meaning specified
in Section 2.02(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or
any successor).
"Performance Level" means, as of any date of the
determination, the level set forth below as then in effect, as
determined in accordance with the following provisions of this
definition:
Level I: Public Debt Rating of not lower than AA+ by S&P
or not lower than Aa1 by Moody's.
Level II: Public Debt Rating of lower than Level I but
not lower than AA- by S&P or Aa3 by Moody's;
or, if no Public Debt Rating is available from
S&P or Moody's, Commercial Paper Rating of not
lower than A-1+ by S&P and P-1 by Moody's.
Level III: Public Debt Rating of lower than Level II but
not lower than A- by S&P or A3 by Moody's; or,
if no Public Debt Rating is available from S&P
or Moody's, Commercial Paper Rating of not
lower than A-2 from S&P and P-2 from Moody's.
Level IV: Public Debt Rating of lower than Level III but
not lower than BBB by S&P or Baa2 by Moody's
or, if no Public Debt Rating is available from
S&P or Moody's, Commercial Paper Rating of not
lower than A-3 from S&P and P-3 by Moody's.
Level V: Public Debt Rating or Commercial Paper Rating
lower than Level IV or no Public Debt Rating or
Commercial Paper Rating.
For purposes of the foregoing, (a) if only one of S&P and
Moody's shall have in effect a Public Debt Rating, the
Performance Level shall be determined by
18
13
reference to the available rating, (b) if the Public Debt
Ratings established by S&P and Moody's shall fall within
different Performance Levels, the Performance Level shall
be based upon the higher rating, provided that if the lower
of such ratings is more than one level below the higher of
such ratings, the Performance Level shall be based on the
level immediately above such lower rating, (c) if only one
of S&P and Moody's shall have in effect a Commercial Paper
Rating, the Performance Level shall be determined by
reference to the available rating and (d) if the Commercial
Paper Ratings established by S&P and Moody's shall fall
within different Performance Levels, the Performance Level
shall be based upon the lower rating.
"Permitted Liens" means any of the following:
(a) Liens for taxes, assessments and
governmental charges or levies to the extent not required
to be paid under Section 5.01(b) hereof;
(b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and
other similar Liens arising in the ordinary course of
business securing obligations (other than Debt) that (i)
are not overdue for a period of more than 120 days or (ii)
are being contested in good faith and by proper proceedings
and as to which appropriate reserves are being maintained
in accordance with GAAP;
(c) Pledges or deposits to secure obligations
under workers' compensation laws or similar legislation or
to secure public or statutory obligations;
(d) Liens securing the performance of or payment
in respect of, bids, tenders, government contracts (other
than for the repayment of Debt), surety and appeal bonds
and other obligations of a similar nature incurred in the
ordinary course of business; and
(e) Easements, rights of way and other
encumbrances on title to real property that do not
materially adversely affect the use of such property for
its present purposes.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability
company or other entity, or a government or any political
subdivision or agency thereof.
19
14
"Plan" means a Single Employer Plan or a Multiple Employer
Plan subject to the provisions of Title IV of ERISA or Section
412 of the Internal Revenue Code or Section 302 of ERISA.
"Pro Rata Share" of any amount means, with respect to any
Lender at any time, the product of such amount times a fraction
the numerator of which is the amount of such Lender's Commitment
at such time and the denominator of which is the aggregate of
the Commitments of the Lenders at such time.
"Public Debt Rating" means, as of any date, the lowest
rating that has been most recently announced by either S&P or
Moody's, as the case may be, for any class of non-credit
enhanced long-term senior unsecured debt issued by the Borrower.
For purposes of the foregoing, (a) if any rating established by
S&P or Moody's shall be changed, such change shall be effective
as of the date on which such change is first announced publicly
by the rating agency making such change; and (b) if S&P or
Moody's shall change the basis on which ratings are established,
each reference to the Public Debt Rating announced by S&P or
Moody's, as the case may be, shall refer to the then equivalent
rating by S&P or Moody's, as the case may be.
"Reference Banks" means Citibank, Credit Suisse and Union
Bank of Switzerland.
"Register" has the meaning specified in Section 8.07(d).
"Required Lenders" means at any time Lenders owed at least
a majority in interest of the then aggregate unpaid principal
amount of the Revolving Credit Advances owing to Lenders, or, if
no such principal amount is then outstanding, Lenders having at
least a majority in interest of the Commitments.
"Revolving Credit Advance" means an advance by a Lender to
the Borrower as part of a Revolving Credit Borrowing and refers
to a Base Rate Advance or a Eurodollar Rate Advance (each of
which shall be a "Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting
of simultaneous Revolving Credit Advances of the same Type made
by each of the Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of the
Borrower (bearing an original or facsimile signature) payable to
the order of any Lender, in substantially the form of Exhibit
A-1 hereto, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Revolving Credit
Advances made by such Lender.
"S&P" means Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc.
20
15
"Shareholders' Equity" means "shareholders' equity" as such
term is construed in accordance with GAAP and as reported in the
Borrower's reports and registration statements filed with the
Securities and Exchange Commission or any national securities
exchange.
"Significant Subsidiary" shall mean any Subsidiary that
would be a "significant subsidiary" within the meaning of Rule
1-02 of the SEC's Regulation S-X.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained
for employees of the Borrower or any ERISA Affiliate and no
Person other than the Borrower and the ERISA Affiliates or (b)
was so maintained and in respect of which the Borrower or any
ERISA Affiliate could have liability under Section 4069 of ERISA
in the event such plan has been or were to be terminated.
"Subsidiary" of any Person means any corporation,
partnership, joint venture, limited liability company, trust or
estate of which (or in which) more than 50% of (a) the issued
and outstanding capital stock having ordinary voting power to
elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (b) the interest
in the capital or profits of such limited liability company,
partnership or joint venture or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned
or controlled by such Person, by such Person and one or more of
its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Swing Line Advance" means an advance made by any Swing
Line Bank pursuant to Section 2.01(b) or any Lender pursuant to
Section 2.02(b).
"Swing Line Bank" means each of Citibank and Wachovia.
"Swing Line Borrowing" means a borrowing consisting of a
Swing Line Advance made by any Swing Line Bank.
"Swing Line Commitment" means with respect to any Swing
Line Bank at any time the amount set forth opposite such Swing
Line Bank's name on the signature pages hereof, as such amount
may be increased, terminated or reduced, as the case may be, at
or prior to such time pursuant to Section 2.05.
"Termination Date" means the earlier of January 31, 2001
and the date of termination in whole of the Commitments pursuant
to Section 2.05 or 6.01.
21
16
"Unused Commitment" means, with respect to any Lender at
any time, (a) such Lender's Commitment at such time minus (b)
the sum of (i) the aggregate principal amount of all Revolving
Credit Advances made by such Lender and outstanding at such
time, plus (ii) such Lender's Pro Rata Share of (A) the
aggregate principal amount of all Swing Line Advances then
outstanding and (B) the aggregate principal amount of the
Competitive Bid Advances then outstanding.
"Voting Stock" means capital stock issued by a corporation,
or equivalent interests in any other Person, the holders of
which are ordinarily, in the absence of contingencies, entitled
to vote for the election of not less than a majority of the
directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this
Agreement in the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and the words
"to" and "until" each mean "to but excluding".
SECTION 1.03. Accounting Terms. All terms of an
accounting or financial nature shall be construed in accordance with generally
accepted accounting principles ("GAAP"), as in effect from time to time;
provided, however, that if the Borrower notifies the Agent that the Borrower
wishes to amend any covenant in Article V or any related definition to
eliminate the effect of any change in GAAP occurring after the date of this
Agreement on the operation of such covenant, or if the Agent notifies the
Borrower that the Required Lenders wish to amend Article V or any related
definition for such purpose, then the Borrower's compliance with such covenant
shall be determined on the basis of GAAP in effect immediately before the
relevant change in GAAP became effective, until either such notice is withdrawn
or such covenant is amended in a manner satisfactory to the Borrower and the
Required Lenders.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. (a) The Revolving Credit
Advances. Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Revolving Credit Advances to the Borrower from
time to time on any Business Day during the period from the Effective Date
until the Termination Date in an amount for each such Advance not to exceed
such Lender's Unused Commitment. Each Revolving Credit Borrowing shall be in
an aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in
excess thereof (or, if less, an aggregate amount equal to the amount by which
the aggregate amount of a proposed Competitive Bid Borrowing requested by the
Borrower exceeds the aggregate amount of Competitive Bid Advances offered to be
made by the Lenders and accepted by the Borrower in respect of such
22
17
Competitive Bid Borrowing, if such Competitive Bid Borrowing is made on the
same date as such Revolving Credit Borrowing) and shall consist of Revolving
Credit Advances of the same Type made on the same day by the Lenders ratably
according to their respective Commitments. Within the limits of each Lender's
Unused Commitment in effect from time to time, the Borrower may borrow under
this Section 2.01(a), prepay pursuant to Section 2.10 and reborrow under this
Section 2.01(a).
(b) The Swing Line Advances. Each Swing Line Bank
severally agrees, on the terms and conditions hereinafter set forth, to make
Swing Line Advances to the Borrower from time to time on any Business Day
during the period from the date hereof until the Termination Date (i) in an
aggregate amount not to exceed at any time outstanding $100,000,000 (the "Swing
Line Facility") and (ii) in an amount for each such Advance not to exceed the
Unused Commitments of the Lenders on such Business Day. No Swing Line Advance
shall be used for the purpose of funding the payment of principal of any other
Swing Line Advance. Each Swing Line Borrowing shall be in an amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and shall
consist of a Base Rate Advance. Within the limits of the Swing Line Facility
and within the limits referred to in clause (ii) above, the Borrower may borrow
under this 2.01(b), prepay pursuant to Section 2.10 and reborrow under this
Section 2.01(b).
SECTION 2.02. Making the Revolving Credit Advances and
Swing Line Advances. (a) Each Revolving Credit Borrowing shall be made on
notice, given not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Revolving Credit Borrowing in
the case of a Revolving Credit Borrowing consisting of Eurodollar Rate
Advances, or the date of the proposed Revolving Credit Borrowing in the case of
a Revolving Credit Borrowing consisting of Base Rate Advances, by the Borrower
to the Agent, which shall give to each Lender prompt notice thereof by
telecopier or telex. Each such notice of a Revolving Credit Borrowing (a
"Notice of Revolving Credit Borrowing") shall be by telephone, confirmed at
once in writing, or telecopier or telex in substantially the form of Exhibit
B-1 hereto, specifying therein the requested (i) date of such Revolving Credit
Borrowing, (ii) Type of Advances comprising such Revolving Credit Borrowing,
(iii) aggregate amount of such Revolving Credit Borrowing, and (iv) in the case
of a Revolving Credit Borrowing consisting of Eurodollar Rate Advances, initial
Interest Period for each such Revolving Credit Advance. Each Lender shall,
before 1:00 P.M. (New York City time) on the date of such Revolving Credit
Borrowing, make available for the account of its Applicable Lending Office to
the Agent at the Agent's Account, in same day funds, such Lender's ratable
portion of such Revolving Credit Borrowing. After the Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Agent will make such funds available to the Borrower at the Agent's
address referred to in Section 8.02; provided, however, that the Agent shall
first make a portion of such funds equal to the aggregate principal amount of
any Swing Line Advances made by the Swing Line Banks and by any other Lender
and outstanding on the date of such Revolving Credit Borrowing, plus interest
accrued and unpaid thereon to and as of
23
18
such date, available to the Swing Line Banks and such other Lenders for
repayment of such Swing Line Advances.
(b) Each Swing Line Borrowing shall be made on
notice, given not later than 3:00 P.M. (New York City time) on the date of the
proposed Swing Line Borrowing by the Borrower to each Swing Line Bank and the
Agent, of which the Agent shall give prompt notice to the Lenders. Each such
notice of a Swing Line Borrowing (a "Notice of Swing Line Borrowing") shall be
by telephone, confirmed at once in writing, or telecopier or telex, specifying
therein the requested (i) date of such Borrowing, (ii) amount of such Borrowing
and (iii) maturity of such Borrowing (which maturity shall be no later than the
fifth Business Day after the requested date of such Borrowing). Each Swing
Line Bank shall, before 5:00 P.M. (New York City time) on the date of such
Swing Line Borrowing, make such Swing Line Bank's ratable portion of such Swing
Line Borrowing available (based on the respective Swing Line Commitments of the
Swing Line Banks) to the Agent at the Agent's Account, in same day funds. After
the Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Agent will make such funds available
to the Borrower at the Agent's address referred to in Section 8.02. Upon
written demand by any Swing Line Bank with a Swing Line Advance, with a copy of
such demand to the Agent, each other Lender will purchase from such Swing Line
Bank, and such Swing Line Bank shall sell and assign to each such other Lender,
such other Lender's Pro Rata Share of such outstanding Swing Line Advance, by
making available for the account of its Applicable Lending Office to the Agent
for the account of such Swing Line Bank, by deposit to the Agent's Account, in
same day funds, an amount equal to the portion of the outstanding principal
amount of such Swing Line Advance to be purchased by such Lender. The Borrower
hereby agrees to each such sale and assignment. Each Lender agrees to purchase
its Pro Rata Share of an outstanding Swing Line Advance on (i) the Business Day
on which demand therefor is made by the Swing Line Bank which made such
Advance, provided that notice of such demand is given not later than 11:00 A.M.
(New York City time) on such Business Day or (ii) the first Business Day next
succeeding such demand if notice of such demand is given after such time. Upon
any such assignment by Swing Line Bank to any other Lender of a portion of a
Swing Line Advance, such Swing Line Bank represents and warrants to such other
Lender that such Swing Line Bank is the legal and beneficial owner of such
interest being assigned by it, but makes no other representation or warranty
and assumes no responsibility with respect to such Swing Line Advance, this
Agreement, the Notes or the Borrower. If and to the extent that any Lender
shall not have so made the amount of such Swing Line Advance available to the
Agent, such Lender agrees to pay to the Agent forthwith on demand such amount
together with interest thereon, for each day from the date such Lender is
required to have made such amount available to the Agent until the date such
amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall
pay to the Agent such amount for the account of such Swing Line Bank on any
Business Day, such amount so paid in respect of principal shall constitute a
Swing Line Advance made by such Lender on such Business Day for purposes of
this Agreement, and the outstanding principal amount of the Swing Line Advance
made by such Swing Line Bank shall be reduced by such amount on such Business
day.
24
19
(c) Anything in subsection (a) above to the
contrary notwithstanding, (i) the Borrower may not select Eurodollar Rate
Advances for any Revolving Credit Borrowing if the aggregate amount of such
Revolving Credit Borrowing is less than $10,000,000 or if the obligation of the
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.08 or 2.12 and (ii) the Eurodollar Rate Advances may not be
outstanding as part of more than fifteen separate Revolving Credit Borrowings.
(d) Each Notice of Revolving Credit Borrowing and
Notice of Swing Line Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Revolving Credit Borrowing that the related
Notice of Revolving Credit Borrowing specifies is to be comprised of Eurodollar
Rate Advances, the Borrower shall indemnify each Lender against any loss, cost
or expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of Revolving Credit Borrowing for such
Revolving Credit Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the Revolving Credit
Advance to be made by such Lender as part of such Revolving Credit Borrowing
when such Revolving Credit Advance, as a result of such failure, is not made on
such date.
(e) Unless the Agent shall have received notice
from a Lender or Swing Line Bank prior to the date of any Revolving Credit
Borrowing or Swing Line Borrowing, as the case may be, that such Lender or
Swing Line Bank will not make available to the Agent such Lender's or Swing
Line Bank's ratable portion of such Revolving Credit Borrowing or Swing Line
Borrowing, as the case may be, the Agent may assume that such Lender or Swing
Line Bank has made such portion available to the Agent on the date of such
Revolving Credit Borrowing or Swing Line Borrowing, as the case may be, in
accordance with subsection (a) or (b) of this Section 2.02 and the Agent may,
in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender or Swing Line Bank
shall not have so made such ratable portion available to the Agent, such Lender
or Swing Line Bank and the Borrower severally agree to repay to the Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to the Advances comprising
such Borrowing and (ii) in the case of such Lender or Swing Line Bank, the
Federal Funds Rate. If such Lender or Swing Line Bank shall repay to the Agent
such corresponding amount, such amount so repaid shall constitute such Lender's
Revolving Credit Advance as part of such Revolving Credit Borrowing or such
Swing Line Bank's Swing Line Advance as part of such Swing Line Borrowing for
purposes of this Agreement.
(f) The failure of any Lender or Swing Line Bank to
make the Revolving Credit Advance or Swing Line Advance to be made by it as
part of any Borrowing shall not relieve any other Lender or Swing Line Bank of
its obligation, if any, hereunder to make its
25
20
Revolving Credit Advance or Swing Line Advance on the date of such Revolving
Credit Borrowing or Swing Line Borrowing as the case may be, but no Lender or
Swing Line Bank shall be responsible for the failure of any other Lender or
Swing Line Bank to make the Revolving Credit Advance or Swing Line Advance to
be made by such other Lender or Swing Line Bank on the date of any Revolving
Credit Borrowing or Swing Line Borrowing, as the case may be.
SECTION 2.03. The Competitive Bid Advances. (a) Each
Lender severally agrees that the Borrower may make Competitive Bid Borrowings
under this Section 2.03 from time to time on any Business Day during the period
from the date hereof until the date occurring 30 days prior to the Termination
Date in the manner set forth below; provided that the amount of each
Competitive Bid Borrowing shall not exceed the aggregate amount of the Unused
Commitments of the Lenders on such Business Day.
(i) The Borrower may request a Competitive Bid
Borrowing under this Section 2.03 by delivering to the Agent, by
telecopier or telex, a notice of a Competitive Bid Borrowing (a
"Notice of Competitive Bid Borrowing"), in substantially the
form of Exhibit B-2 hereto, specifying therein the requested (v)
date of such proposed Competitive Bid Borrowing, (w) aggregate
amount of such proposed Competitive Bid Borrowing, (x) in the
case of a Competitive Bid Borrowing consisting of LIBO Rate
Advances, Interest Period, or in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Advances, maturity date for
repayment of each Fixed Rate Advance to be made as part of such
Competitive Bid Borrowing (which maturity date may not be
earlier than the date occurring 30 days after the date of such
Competitive Bid Borrowing or later than the earlier of (I) 360
days after the date of such Competitive Bid Borrowing and (II)
the Termination Date), (y) interest payment date or dates
relating thereto, and (z) other terms (if any) to be applicable
to such Competitive Bid Borrowing, not later than 10:00 A.M.
(New York City time) (A) at least one Business Day prior to the
date of the proposed Competitive Bid Borrowing, if the Borrower
shall specify in the Notice of Competitive Bid Borrowing that
the rates of interest to be offered by the Lenders shall be
fixed rates per annum (the Advances comprising any such
Competitive Bid Borrowing being referred to herein as "Fixed
Rate Advances") and (B) at least four Business Days prior to the
date of the proposed Competitive Bid Borrowing, if the Borrower
shall instead specify in the Notice of Competitive Bid Borrowing
that the rates of interest be offered by the Lenders are to be
based on the LIBO Rate (the Advances comprising such Competitive
Bid Borrowing being referred to herein as "LIBO Rate Advances").
Each Notice of Competitive Bid Borrowing shall be irrevocable
and binding on the Borrower. The Agent shall in turn promptly
notify each Lender of each request for a Competitive Bid
Borrowing received by it from the Borrower by sending such
Lender a copy of the related Notice of Competitive Bid
Borrowing.
26
21
(ii) Each Lender may, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more
Competitive Bid Advances to the Borrower as part of such
proposed Competitive Bid Borrowing at a rate or rates of
interest specified by such Lender in its sole discretion, by
notifying the Agent (which shall give prompt notice thereof to
the Borrower), before 9:30 A.M. (New York City time) on the date
of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances and
before 10:00 A.M. (New York City time) three Business Days
before the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of LIBO Rate
Advances, of the minimum amount and maximum amount of each
Competitive Bid Advance which such Lender would be willing to
make as part of such proposed Competitive Bid Borrowing (which
amounts may, subject to the proviso to the first sentence of
this Section 2.03(a), exceed such Lender's Commitment), the rate
or rates of interest therefor and such Lender's Applicable
Lending Office with respect to such Competitive Bid Advance;
provided that if the Agent in its capacity as a Lender shall, in
its sole discretion, elect to make any such offer, it shall
notify the Borrower of such offer at least 30 minutes before the
time and on the date on which notice of such election is to be
given to the Agent by the other Lenders. If any Lender shall
elect not to make such an offer, such Lender shall so notify the
Agent, before 10:00 A.M. (New York City time) on the date on
which notice of such election is to be given to the Agent by the
other Lenders, and such Lender shall not be obligated to, and
shall not, make any Competitive Bid Advance as part of such
Competitive Bid Borrowing; provided that the failure by any
Lender to give such notice shall not cause such Lender to be
obligated to make any Competitive Bid Advance as part of such
proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before 10:30 A.M.
(New York City time) on the date of such proposed Competitive
Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of Fixed Rate Advances and before 11:00 A.M. (New
York City time) three Business Days before the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by
giving the Agent notice to that effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in its
sole discretion, by giving notice to the Agent of the
amount of each Competitive Bid Advance (which amount shall
be equal to or greater than the minimum amount, and equal
to or less than the maximum amount, notified to the
Borrower by the Agent on behalf of such Lender for such
Competitive Bid Advance pursuant to paragraph (ii) above)
to be made by each Lender as part of such Competitive Bid
Borrowing, and reject any remaining offers made by Lenders
pursuant to paragraph (ii) above by giving the
27
22
Agent notice to that effect. The Borrower shall accept the
offers made by any Lender or Lenders to make Competitive
Bid Advances in order of the lowest to the highest rates of
interest offered by such Lenders. If two or more Lenders
have offered the same interest rate, the amount to be
borrowed at such interest rate will be allocated among such
Lenders in proportion to the amount that each such Lender
offered at such interest rate.
(iv) If the Borrower notifies the Agent that such
Competitive Bid Borrowing is cancelled pursuant to paragraph
(iii)(x) above, the Agent shall give prompt notice thereof to
the Lenders and such Competitive Bid Borrowing shall not be
made.
(v) If the Borrower accepts one or more of the
offers made by any Lender or Lenders pursuant to paragraph
(iii)(y) above, the Agent shall in turn promptly notify (A) each
Lender that has made an offer as described in paragraph (ii)
above, of the date and aggregate amount of such Competitive Bid
Borrowing and whether or not any offer or offers made by such
Lender pursuant to paragraph (ii) above have been accepted by
the Borrower, (B) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, of the amount
of each Competitive Bid Advance to be made by such Lender as
part of such Competitive Bid Borrowing, and (C) each Lender that
is to make a Competitive Bid Advance as part of such Competitive
Bid Borrowing, upon receipt, that the Agent has received forms
of documents appearing to fulfill the applicable conditions set
forth in Article III. Each Lender that is to make a Competitive
Bid Advance as part of such Competitive Bid Borrowing shall,
before 12:00 noon (New York City time) on the date of such
Competitive Bid Borrowing specified in the notice received from
the Agent pursuant to clause (A) of the preceding sentence or
any later time when such Lender shall have received notice from
the Agent pursuant to clause (C) of the preceding sentence, make
available for the account of its Applicable Lending Office to
the Agent at the Agent's Account, in same day funds, such
Lender's portion of such Competitive Bid Borrowing. Upon
fulfillment of the applicable conditions set forth in Article
III and after receipt by the Agent of such funds, the Agent will
make such funds available to the Borrower at the Agent's address
referred to in Section 8.02. Promptly after each Competitive
Bid Borrowing the Agent will notify each Lender of the amount of
the Competitive Bid Borrowing.
(vi) If the Borrower notifies the Agent that it
accepts one or more of the offers made by any Lender or Lenders
pursuant to paragraph (iii)(y) above, such notice of acceptance
shall be irrevocable and binding on the Borrower. The Borrower
shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on
or before the date specified in the related Notice of
Competitive Bid Borrowing for such Competitive Bid Borrowing the
applicable conditions set forth in Article III, including,
without limitation, any loss (excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation
or
28
23
reemployment of deposits or other funds acquired by such Lender
to fund the Competitive Bid Advance to be made by such Lender as
part of such Competitive Bid Borrowing when such Competitive Bid
Advance, as a result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof and, following the making of each Competitive Bid Borrowing, the
Borrower shall be in compliance with the limitation set forth in the proviso to
the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set
forth in this Section 2.03, the Borrower may from time to time borrow under
this Section 2.03, repay or prepay pursuant to subsection (d) below, and
reborrow under this Section 2.03, provided that a Competitive Bid Borrowing
shall not be made within one Business Day of the date of any other Competitive
Bid Borrowing.
(d) The Borrower shall repay to the Agent for the
account of each Lender that has made a Competitive Bid Advance, on the maturity
date of each Competitive Bid Advance (such maturity date being that specified
by the Borrower for repayment of such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above and provided in the Competitive Bid Note evidencing such Competitive Bid
Advance), the then unpaid principal amount of such Competitive Bid Advance.
The Borrower shall have no right to prepay any principal amount of any
Competitive Bid Advance unless, and then only on the terms, specified by the
Borrower for such Competitive Bid Advance in the related Notice of Competitive
Bid Borrowing delivered pursuant to subsection (a)(i) above and set forth in
the Competitive Bid Note evidencing such Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid
principal amount of each Competitive Bid Advance from the date of such
Competitive Bid Advance to the date the principal amount of such Competitive
Bid Advance is repaid in full, at the rate of interest for such Competitive Bid
Advance specified by the Lender making such Competitive Bid Advance in its
notice with respect thereto delivered pursuant to subsection (a)(ii) above,
payable on the interest payment date or dates specified by the Borrower for
such Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above, as provided in the Competitive
Bid Note evidencing such Competitive Bid Advance. The Borrower shall pay
interest on the amount of overdue principal and, to the fullest extent
permitted by law, interest in respect of each Competitive Bid Advance owing to
a Lender, payable in arrears on the date or dates interest is payable thereon,
at a rate per annum equal at all times to 1% per annum above the rate per annum
required to be paid on such Competitive Bid Advance under the terms of the
Competitive Bid Note evidencing such Competitive Bid Advance unless otherwise
agreed in such Competitive Bid Note.
29
24
(f) The indebtedness of the Borrower resulting from
each Competitive Bid Advance made to the Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note of the Borrower
payable to the order of the Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower
agrees to pay to the Agent for the account of each Lender a facility fee on the
aggregate amount of such Lender's Commitment in effect from time to time from
the Effective Date in the case of each Initial Lender and from the later of the
Effective Date and the effective date specified in the Assumption Agreement or
in the Assignment and Acceptance, as the case may be, pursuant to which it
became a Lender in the case of each other Lender until the Termination Date at
a rate per annum equal to the Applicable Percentage in effect from time to
time, payable in arrears quarterly on the last day of each March, June,
September and December, commencing March 31, 1996, and on the Termination Date.
(b) Agent's Fees. The Borrower shall pay to the
Agent for its own account such fees as may from time to time be agreed between
the Borrower and the Agent.
SECTION 2.05. Termination, Reduction or Increase of the
Commitments. (a) Termination or Reduction. The Borrower shall have the right,
upon at least three Business Days' notice to the Agent, to terminate in whole
or reduce ratably in part the respective Unused Commitments of the Lenders,
provided that each partial reduction shall be in the aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof. The
aggregate amount of the Commitments once reduced as provided in this Section
2.05(a), may not be reinstated, except as provided in Section 2.05(b) below.
(b) Increase in Aggregate of the Commitments. (i)
The Borrower may at any time, by notice to the Agent, propose that the
aggregate amount of the Commitments be increased (such aggregate amount being,
a "Commitment Increase"), effective as at a date prior to the Termination Date
(an "Increase Date") as to which agreement is to be reached by an earlier date
specified in such notice (a "Commitment Date"); provided, however, that (A) the
Borrower may not propose more than two Commitment Increases in any calendar
year, (B) the minimum proposed Commitment Increase per notice shall be
$25,000,000, (C) in no event shall the aggregate amount of the Commitments at
any time exceed $500,000,000, (D) the applicable Performance Level on such
Increase Date shall be Level I, Level II or Level III and (E) no Default shall
have occurred and be continuing on such Increase Date. The Agent shall notify
the Lenders thereof promptly upon its receipt of any such notice. The Agent
agrees that it will cooperate with the Borrower in discussions with the Lenders
and other Eligible Assignees with a view to arranging the proposed Commitment
Increase through the increase of the Commitments of one or more of the Lenders
(each such Lender that is willing to increase its Commitment hereunder being an
"Increasing Lender") and the addition of one or more other Eligible Assignees
as Assuming Lenders and as parties to this Agreement; provided, however, that
it
30
25
shall be in each Lender's sole discretion whether to increase its Commitment
hereunder in connection with the proposed Commitment Increase; and provided
further that the minimum Commitment of each such Assuming Lender that becomes a
party to this Agreement pursuant to this Section 2.05(b), shall be at least
equal to $15,000,000. If any of the Lenders agree to increase their respective
Commitments by an aggregate amount in excess of the proposed Commitment
Increase, the proposed Commitment Increase shall be allocated among such
Lenders in proportion to their respective Commitments immediately prior to the
Increase Date. If agreement is reached on or prior to the applicable Commitment
Date with any Increasing Lenders and Assuming Lenders as to a Commitment
Increase (which may be less than but not greater than specified in the
applicable notice from the Borrower), such agreement to be evidenced by a
notice in reasonable detail from the Borrower to the Agent on or prior to the
applicable Commitment Date, such Assuming Lenders, if any, shall become Lenders
hereunder as of the applicable Increase Date and the Commitments of such
Increasing Lenders and such Assuming Lenders shall become or be, as the case
may be, as of the Increase Date, the amounts specified in such notice; provided
that:
(x) the Agent shall have received (with copies for
each Lender, including each such Assuming Lender) by no later
than 10:00 A.M. (New York City time) on the applicable Increase
Date a certificate of a financial officer of the Borrower or the
Secretary of the Borrower, (1) stating that the resolutions
adopted by the Board of Directors of the Borrower on September
15, 1995 authorizing the Borrower to borrow money from time to
time in an aggregate principal amount at any one time
outstanding not in excess of $500,000,000 remain in full force
and effect and have not been modified or rescinded or attaching
and certifying, if applicable, any amendments to such
resolutions or supplemental borrowing resolutions and (2)
specifying the aggregate principal amount of borrowed money or
commitments of lenders to advance money under agreements entered
into pursuant to such resolutions (including any such
supplemental resolutions) other than this Agreement;
(y) each such Assuming Lender shall have delivered
to the Agent, by no later than 10:00 A.M. (New York City time)
on such Increase Date, an appropriate Assumption Agreement in
substantially the form of Exhibit D hereto, duly executed by
such Assuming Lender and the Borrower; and
(z) each such Increasing Lender shall have
delivered to the Agent by, no later than 10:00 A.M. (New York
City time) on such Increase Date, (A) its existing Revolving
Credit Note and (B) confirmation in writing satisfactory to the
Agent as to its increased Commitment.
(ii) In the event that the Agent shall have received
notice from the Borrower as to its agreement to a Commitment Increase on or
prior to the applicable Commitment Date and each of the actions provided for in
clauses (x) through (z) above shall have occurred prior
31
26
to 10:00 A.M. (New York City time) on the applicable Increase Date to the
satisfaction of the Agent, the Agent shall notify the Lenders (including any
Assuming Lenders) and the Borrower of the occurrence of such Commitment
Increase by telephone, confirmed at once in writing, telecopier, telex or cable
and in any event no later than 1:00 P.M. (New York City time) on such Increase
Date and shall record in the Register the relevant information with respect to
each Increasing Lender and Assuming Lender. Each Increasing Lender and each
Assuming Lender shall, before 2:00 P.M. (New York City time) on the applicable
Increase Date, make available for the account of its Applicable Lending Office
to the Agent at the Agent's Account, in same day funds, in the case of such
Assuming Lender, an amount equal to such Assuming Lender's ratable portion of
the Revolving Credit Borrowings then outstanding (calculated based on its
Commitment as a percentage of the aggregate Commitments outstanding after
giving effect to the relevant Commitment Increase) and, in the case of such
Increasing Lender, an amount equal to the excess of (i) such Increasing
Lender's ratable portion of the Revolving Credit Borrowings then outstanding
(calculated based on its Commitment as a percentage of the aggregate
Commitments outstanding after giving effect to the relevant Commitment
Increase) over (ii) such Increasing Lender's Pro Rata Share of the Revolving
Credit Borrowings then outstanding (calculated based on its Commitment (without
giving effect to the relevant Commitment Increase) as a percentage of the
aggregate Commitments (without giving effect to the relevant Commitment
Increase). After the Agent's receipt of such funds from each such Increasing
Lender and each such Assuming Lender, the Agent will promptly thereafter cause
to be distributed like funds to the other Lenders for the account of their
respective Applicable Lending Offices in an amount to each other Lender such
that the aggregate amount of the outstanding Revolving Credit Advances owing to
each Lender after giving effect to such distribution equals such Lender's Pro
Rata Share of the Revolving Credit Borrowings then outstanding (calculated
based on its Commitment as a percentage of the aggregate Commitments
outstanding after giving effect to the relevant Commitment Increase). Within
five Business Days after the Borrower receives notice from the Agent, the
Borrower, at its own expense, shall execute and deliver to the Agent, Revolving
Credit Notes payable to the order of each Assuming Lender, if any, and, each
Increasing Lender, dated as of the applicable Increase Date, in a principal
amount equal to such Lender's Commitment after giving effect to the relevant
Commitment Increase, and substantially in the form of Exhibit A-1 hereto. The
Agent, upon receipt of such Revolving Credit Notes, shall promptly deliver such
Revolving Credit Notes to the respective Assuming Lenders and Increasing
Lenders.
(iii) In the event that the Agent shall not have
received notice from the Borrower as to such agreement on or prior to the
applicable Commitment Date or the Borrower shall, by notice to the Agent prior
to the applicable Increase Date, withdraw its proposal for a Commitment
Increase or any of the actions provided for above in clauses (i)(x) through
(i)(z) shall not have occurred by 10:00 A.M. (New York City time) on the such
Increase Date, such proposal by the Borrower shall be deemed not to have been
made. In such event, any actions theretofore taken under clauses (i)(x)
through (i)(z) above shall be deemed to be of no effect and all the rights and
obligations of the parties shall continue as if no such proposal had been made.
32
27
SECTION 2.06. Repayment. (a) Revolving Credit Advances.
The Borrower shall repay to the Agent for the ratable account of the Lenders on
the Termination Date the aggregate principal amount of the Revolving Credit
Advances then outstanding.
(b) Swing Line Advances. The Borrower shall repay
to the Agent for the account of the Swing Line Banks and each other Lender
which has made a Swing Line Advance the outstanding principal amount of each
Swing Line Advance made by each of them on the earlier of the maturity date
specified in the applicable Notice of Swing Line Borrowing (which maturity
shall be no later than five Business Days after the requested date of such
Borrowing) and the Termination Date.
SECTION 2.07. Interest on Revolving Credit Advances and
Swing Line Advances. (a) Scheduled Interest. The Borrower shall pay interest
on the unpaid principal amount of each Revolving Credit Advance and Swing Line
Advance owing to each Lender from the date of such Revolving Credit Advance or
Swing Line Advance, as the case may be, until such principal amount shall be
paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as
such Revolving Credit Advance is a Base Rate Advance and for
each Swing Line Advance, a rate per annum equal at all times to
the sum of (x) the Base Rate in effect from time to time plus
(y) the Applicable Margin in effect from time to time, payable
in arrears quarterly on the last day of each March, June,
September and December during such periods and on the date such
Base Rate Advance shall be Converted or paid in full or Swing
Line Advance is paid in full.
(ii) Eurodollar Rate Advances. During such periods
as such Revolving Credit Advance is a Eurodollar Rate Advance, a
rate per annum equal at all times during each Interest Period
for such Revolving Credit Advance to the sum of (x) the
Eurodollar Rate for such Interest Period for such Revolving
Credit Advance plus (y) the Applicable Margin in effect from
time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of
more than three months, on each day that occurs during such
Interest Period every three months from the first day of such
Interest Period and on the date such Eurodollar Rate Advance
shall be Converted or paid in full.
(b) Default Interest. The Borrower shall pay
interest on (i) overdue principal of each Revolving Credit Advance owing to
each Lender, payable in arrears on the dates referred to in clause (a)(i) or
(a)(ii) above, at a rate per annum equal at all times to 1% per annum above the
rate per annum required to be paid on such Revolving Credit Advance pursuant to
clause (a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law,
the amount of any overdue interest, fee or other amount payable hereunder, from
the date such amount shall be due until such amount shall be paid
33
28
in full, payable in arrears on the date such amount shall be paid in full and
on demand, at a rate per annum equal at all times to 1% per annum above the
rate per annum required to be paid on Base Rate Advances pursuant to clause
(a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) Each
Reference Bank agrees to furnish to the Agent timely information for the
purpose of determining each Eurodollar Rate and each LIBO Rate. If any one or
more of the Reference Banks shall not furnish such timely information to the
Agent for the purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information furnished by
the remaining Reference Banks. The Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate determined by the
Agent for purposes of Section 2.07(a)(i) or (ii), and the rate, if any,
furnished by each Reference Bank for the purpose of determining the interest
rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate
Advances, the Required Lenders notify the Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Required Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period, the Agent shall forthwith so
notify the Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance
will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance, and (ii) the obligation of the
Lenders to make, or to Convert Revolving Credit Advances into, Eurodollar Rate
Advances shall be suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the
duration of any Interest Period for any Eurodollar Rate Advances in accordance
with the provisions contained in the definition of "Interest Period" in Section
1.01, the Agent will forthwith so notify the Borrower and the Lenders and the
Borrower shall be deemed to have selected an Interest Period of one month.
(d) Upon the occurrence and during the continuance
of any Event of Default under Section 6.01(a), (i) each Eurodollar Rate Advance
will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
(e) If fewer than two Reference Banks furnish
timely information to the Agent for determining the Eurodollar Rate or LIBO
Rate for any Eurodollar Rate Advances or LIBO Rate Advances, as the case may
be, the Eurodollar Rate or the LIBO Rate for such Eurodollar Rate Advance or
LIBO Rate Advance, as the case may be, shall be an interest rate per annum
determined by the Agent to be the offered rate per annum at which deposits in
U.S. dollars appears on the Telerate Page 3750 (or any successor page) as of
11:00 A.M. (London time), or in the event such offered rate is not available
from the Telerate Page,
34
29
(i) the Agent shall forthwith notify the Borrower
and the Lenders that the interest rate cannot be determined for
such Eurodollar Rate Advances or LIBO Rate Advances, as the case
may be,
(ii) with respect to Eurodollar Rate Advances, each
such Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance, will
continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make
Eurodollar Rate Advances or LIBO Rate Advances or to Convert
Revolving Credit Advances into Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer
exist.
SECTION 2.09. Optional Conversion of Revolving Credit
Advances. The Borrower may on any Business Day, upon notice given to the Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of
Sections 2.08 and 2.12, Convert all Revolving Credit Advances of one Type
comprising the same Borrowing into Revolving Credit Advances of the other Type;
provided, however, that any Conversion of Base Rate Advances into Eurodollar
Rate Advances shall be in an amount not less than the minimum amount specified
in Section 2.02(b) and no Conversion of any Revolving Credit Advances shall
result in more separate Revolving Credit Borrowings than permitted under
Section 2.02(b). Each such notice of a Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii) the
Revolving Credit Advances to be Converted, and (iii) if such Conversion is into
Eurodollar Rate Advances, the duration of the initial Interest Period for each
such Advance. Each notice of Conversion shall be irrevocable and binding on
the Borrower.
SECTION 2.10. Optional Prepayments of Revolving Credit
Advances and Swing Line Advances. The Borrower may, in the case of Eurodollar
Rate Advances, upon at least two Business Days' notice to the Agent, and in the
case of Base Rate Advances and Swing Line Advances, upon notice to the Agent
not later than 11:00 A.M. on the date of such proposed prepayment, stating in
each case the proposed date and aggregate principal amount of the prepayment,
and if such notice is given the Borrower shall, prepay the outstanding
principal amount of the Revolving Credit Advances comprising part of the same
Revolving Credit Borrowing or Swing Line Advances comprising part of the same
Swing Line Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount of $5,000,000 for any Base Rate Advance or Swing Line Advance
or $10,000,000 for any Eurodollar Rate
35
30
Advance or, in each case, an integral multiple of $1,000,000 in excess thereof
and (y) in the event of any such prepayment of a Eurodollar Rate Advance, the
Borrower shall be obligated to reimburse the Lenders in respect thereof
pursuant to Section 8.04(c).
SECTION 2.11. Increased Costs. (a) If, after the date
hereof, due to either (i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender (other than in respect of Eurocurrency Liabilities) of
agreeing to make or making, funding or maintaining Eurodollar Rate Advances
(excluding for purposes of this Section 2.11 any such increased costs resulting
from (i) Taxes or Other Taxes (as to which Section 2.14 shall govern) and (ii)
changes in the basis of taxation of overall net income or overall gross income
by the United States or by the foreign jurisdiction or state under the laws of
which such Lender is organized or has its Applicable Lending Office or any
political subdivision thereof), then the Borrower shall from time to time, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient to
compensate such Lender for such increased cost. A certificate as to the amount
of such increased cost, setting forth in reasonable detail the basis therefor
and the computation thereof, submitted to the Borrower and the Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest
error. Notwithstanding the foregoing, none of the Lenders shall deliver the
notice and certificate described in this Section 2.11(a) to the Borrower in
respect of any increased costs except in accordance with the internal policy of
such Lender as to the exercise of similar rights and remedies in similar
circumstances.
(b) If any Lender determines that compliance with
any law or regulation or any guideline or request from any central bank or
other governmental authority (whether or not having the force of law) in either
case enacted, adopted or made after the date hereof, affects or would affect
the amount of capital required or expected to be maintained by such Lender or
any corporation controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender's commitment to lend
hereunder and other commitments of this type, then, upon demand by such Lender
(with a copy of such demand to the Agent), the Borrower shall pay to the Agent
for the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation for
the reduction of the rate of return on such Lender's capital or on the capital
of such corporation, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's
commitment to lend hereunder. A certificate as to such amounts, setting forth
in reasonable detail the basis therefor and the computation thereof, submitted
to the Borrower and the Agent by such Lender shall be conclusive and binding
for all purposes, absent manifest error. Notwithstanding the foregoing, none
of the Lenders shall deliver the notice and certificate described in this
Section 2.11(b) to the Borrower in respect of any requirements of additional
capital except in accordance with the internal policy of such Lender as to the
exercise of similar rights and remedies in similar circumstances.
36
31
(c) If any Lender shall give notice to the Agent
and the Borrower at any time to the effect that Eurocurrency Reserve
Requirements are, or are scheduled to become, effective and that such Lender is
or will be generally subject to such Eurocurrency Reserve Requirements (without
regard to whether such Lender will be able to benefit from proration or offsets
that may be available from time to time under Regulation D) as a result of
which such Lender will incur additional costs, then such Lender shall, for each
day from the later of the date of such notice and the date on which such
Eurocurrency Reserve Requirements become effective, be entitled to additional
interest on each Eurodollar Rate Advance made by it at a rate per annum
determined for such day (rounded upward to the nearest 100th of 1%) equal to
the remainder obtained by subtracting (i) the Eurodollar Rate for such
Eurodollar Rate Advance from (ii) the rate obtained by dividing such Eurodollar
Rate by a percentage equal to 100% minus the then applicable Eurocurrency
Reserve Requirements. Such additional interest will be payable in arrears to
the Agent, for the account of such Lender, on each date that interest is
payable on such Eurodollar Rate Advance. Any Lender which gives a notice under
this paragraph (c) shall promptly withdraw such notice (by written notice of
withdrawal given to the Agent and the Borrower) in the event Eurocurrency
Reserve Requirements cease to apply to it or the circumstances giving rise to
such notice otherwise cease to exist.
(d) Notwithstanding anything to the contrary herein
contained, no Lender shall be entitled to claim any additional amounts pursuant
to this Section 2.11 arising with respect to any period of time prior to the
date that is 60 days prior to the date on which notice of such claim and the
basis therefor is first given to the Borrower pursuant to this Section 2.11.
SECTION 2.12. Illegality. (a) Notwithstanding any other
provision of this Agreement, if any Lender shall notify the Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
LIBO Rate Advances or to fund or maintain Eurodollar Rate Advances or LIBO Rate
Advances hereunder, (i) each Eurodollar Rate Advance or LIBO Rate Advance, as
the case may be, of such Lender will automatically, upon such demand, Convert
into a Base Rate Advance or an Advance that bears interest at the rate set
forth in Section 2.07(a)(i), as the case may be, and (ii) the obligation of
such Lender to make Eurodollar Rate Advances or LIBO Rate Advances or to
Convert Revolving Credit Advances into Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist. If any Lender shall
exercise its rights under this Section 2.12(a), all payments and prepayments of
principal which would otherwise have been applied to repay the Eurodollar Rate
Advances or LIBO Rate Advances that would have been made by such Lender or the
converted Eurodollar Rate Advances or LIBO Rate Advances of such Lender shall
instead be applied to repay the Base Rate Advances or Advances bearing interest
at the rate set forth in Section 2.07(a)(i), as the case may be, made by such
Lender in lieu of, or resulting from the conversion of, such Eurodollar Rate
Advances or LIBO Rate Advances, and all distributions of payments
37
32
in respect of interest shall be made to the Lenders ratably based on the
interest rates applicable to their respective Advances.
(b) For purposes of this Section 2.12, a notice to the
Borrower by any Lender shall be effective as to each Eurodollar Rate Advance or
LIBO Rate Advance, if lawful, on the last day of the Interest Period currently
applicable to such Eurodollar Rate Advance or LIBO Rate Advance; in all other
cases such notice shall be effective on the date of receipt by the Borrower.
SECTION 2.13. Payments and Computations. (a) The
Borrower shall make each payment hereunder and under the Notes not later than
12:00 noon (New York City time) on the day when due in U.S. dollars to the
Agent at the Agent's Account in same day funds. The Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest or facility fees ratably (other than amounts payable
pursuant to Section 2.03, 2.11, 2.14 or 8.04(c)) to the Lenders for the account
of their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to
the Lender assignee thereunder, and the parties to such Assignment and
Acceptance shall make all appropriate adjustments in such payments for periods
prior to such effective date directly between themselves. Upon any Assuming
Lender becoming a Lender hereunder as a result of the effectiveness of a
Commitment Increase pursuant to Section 2.05(b) and upon the Agent's receipt of
such Lender's Assumption Agreement and recording the information contained
therein in the Register, from and after the applicable Increase Date, the Agent
shall make all payments hereunder and under the Notes in respect of the
interest assumed thereby to the Assuming Lender.
(b) All computations of interest based on the Base
Rate shall be made by the Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the Eurodollar Rate
or the Federal Funds Rate and of facility fees shall be made by the Agent on
the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest or facility fees are payable. Each determination by
the Agent of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(c) Whenever any payment hereunder or under the
Notes shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such extension
of time shall in such case be included in the computation of payment of
interest or facility fee, as the case may be; provided, however, that, if such
38
33
extension would cause payment of interest on or principal of Eurodollar Rate
Advances or LIBO Rate Advances to be made in the next following calendar month,
such payment shall be made on the next preceding Business Day.
(d) Unless the Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the Agent may
assume that the Borrower has made such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent the Borrower shall not have so made such
payment in full to the Agent, each Lender shall repay to the Agent forthwith on
demand such amount distributed to such Lender together with interest thereon,
for each day from the date such amount is distributed to such Lender until the
date such Lender repays such amount to the Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the
Borrower hereunder or under the Notes shall be made, in accordance with Section
2.13, free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Agent, taxes imposed on its overall net income, and franchise taxes imposed on
it in lieu of net income taxes, by the jurisdiction under the laws of which
such Lender or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its
overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof, and further excluding, if any Lender is found as
the result of a determination (as defined in Section 1313(a) of the Internal
Revenue Code) to be a conduit entity participating in a conduit financing
arrangement as defined in Treasury Regulations promulgated under Section
7701(1) of the Internal Revenue Code, the excess of the United States taxes
imposed with respect to such Lender over the amount of United States taxes that
would have been imposed with respect to such Lender if such determination had
not been made with respect to such Lender (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in respect of
payments hereunder or under the Notes being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder or under any Note to any Lender or the
Agent, (i) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.14) such Lender or the Agent (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii)
the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
39
34
(b) In addition, the Borrower agrees to pay any
present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies that arise from any payment made hereunder or
under the Notes or from the execution, delivery or registration of, performing
under, or otherwise with respect to, this Agreement or the Notes (hereinafter
referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender and
the Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any taxes imposed by any jurisdiction on amounts payable under this
Section 2.14) imposed on or paid by such Lender or the Agent (as the case may
be) and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within
30 days from the date such Lender or the Agent (as the case may be) makes
written demand therefor.
(d) Within 30 days after the date of any payment of
Taxes, the Borrower shall furnish to the Agent, at its address referred to in
Section 8.02, the original or a certified copy of a receipt evidencing payment
thereof. In the case of any payment hereunder or under the Notes by or on
behalf of the Borrower through an account or branch outside the United States
or by or on behalf of the Borrower by a payor that is not a United States
person, if the Borrower determines that no Taxes are payable in respect
thereof, the Borrower shall furnish, or shall cause such payor to furnish, to
the Agent, at such address, an opinion of counsel acceptable to the Agent
stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Each Lender organized under the laws of a
jurisdiction outside the United States, on or prior to the date of its
execution and delivery of this Agreement in the case of each Initial Lender and
on the date of the Assumption Agreement or the Assignment and Acceptance, as
the case may be, pursuant to which it becomes a Lender in the case of each
other Lender, and from time to time thereafter as requested in writing by the
Borrower (but only so long as such Lender remains lawfully able to do so),
shall provide each of the Agent and the Borrower with two original Internal
Revenue Service forms 1001 or 4224, as appropriate, or any successor or other
form prescribed by the Internal Revenue Service, certifying that such Lender is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes. If the forms provided by a
Lender at the time such Lender first becomes a party to this Agreement indicate
a United States interest withholding tax rate in excess of zero, withholding
tax at such rate shall be considered excluded from Taxes unless and until such
Lender provides the appropriate forms certifying that a lesser rate applies,
whereupon withholding tax at such lesser rate only shall be considered excluded
from Taxes for periods governed by such forms; provided, however, that, if at
the date of the Assumption Agreement or the Assignment and Acceptance, as the
case may be, pursuant to which a Lender assignee becomes a party to this
Agreement, the Lender assignor was entitled to payments under subsection (a) in
respect of United States withholding tax with respect to interest paid at such
40
35
date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender assignee on such date. If any form or document referred
to in this subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required on
the date hereof by Internal Revenue Service form 1001 or 4224, that the Lender
reasonably considers to be confidential, the Lender shall give notice thereof
to the Borrower and shall not be obligated to include in such form or document
such confidential information.
(f) For any period with respect to which a Lender
has failed to provide the Borrower with the appropriate form described in
Section 2.14(e) (other than if such failure is due to a change in law occurring
subsequent to the date on which a form originally was required to be provided,
or if such form otherwise is not required under the first sentence of
subsection (e) above), such Lender shall not be entitled to indemnification
under Section 2.14(a) or (c) with respect to Taxes imposed by the United States
by reason of such failure; provided, however, that should a Lender become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as the Lender shall reasonably request to
assist the Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts
payable pursuant to this Section 2.14 agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Eurodollar Lending Office if the making of such
a change would avoid the need for, or reduce the amount of, any additional
amounts that may thereafter accrue and would not, in the reasonable judgment of
such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.15. Sharing of Payments, Etc. If any Lender
shall obtain any payment (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) on account of the Revolving Credit
Advances or Swing Line Advances owing to it (other than pursuant to Section
2.11, 2.14 or 8.04(c)) in excess of its ratable share of payments on account of
the Revolving Credit Advances or Swing Line Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Revolving Credit Advances or Swing Line Advances owing to
them as shall be necessary to cause such purchasing Lender to share the excess
payment ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section 2.15
may, to the fullest extent
41
36
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the
Advances shall be available (and the Borrower agrees that it shall use such
proceeds) for general corporate purposes of the Borrower and its Subsidiaries,
including acquisitions and stock repurchases.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement shall become
effective on and as of the first date (the "Effective Date") on which the
following conditions precedent have been satisfied:
(a) The Borrower shall have paid all accrued fees
and expenses of the Agent and the Lenders (including the accrued
fees and expenses of counsel to the Agent).
(b) On the Effective Date, the following statements
shall be true and the Agent shall have received for the account
of each Lender a certificate signed by a duly authorized officer
of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties
contained in Section 4.01 are correct in all material
respects on and as of the Effective Date, and
(ii) No event has occurred and is continuing
that constitutes a Default.
(c) The Agent shall have received on or before the
Effective Date the following, each dated such day, in form and
substance satisfactory to the Agent and (except for the
Revolving Credit Notes) in sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order of
the Lenders, respectively.
(ii) Certified copies of the resolutions of the
Board of Directors of the Borrower approving this Agreement
and the Notes, and of all documents evidencing other
necessary corporate action and governmental approvals, if
any, with respect to this Agreement and the Notes.
42
37
(iii) A certificate of the Secretary or an
Assistant Secretary of the Borrower certifying the names
and true signatures of the officers of the Borrower
authorized to sign this Agreement and the Notes and the
other documents to be delivered hereunder.
(iv) A favorable opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
general counsel for the Borrower, substantially in the form
of Exhibit E hereto and as to such other matters as any
Lender through the Agent may reasonably request.
(v) A favorable opinion of Shearman &
Sterling, counsel for the Agent, in form and substance
satisfactory to the Agent.
SECTION 3.02. Conditions Precedent to Each Revolving
Credit Borrowing and Each Swing Line Borrowing. The obligation of each Lender
to make an Advance on the occasion of each Borrowing (other than a Swing Line
Advance made by a Lender pursuant to Section 2.02(b) and other than a
Competitive Bid Advance) shall be subject to the conditions precedent that the
Effective Date shall have occurred and on the date of such Borrowing the
following statements shall be true (and each of the giving of the applicable
Notice of Revolving Credit Borrowing, a Notice of Swing Line Borrowing and the
acceptance by the Borrower of the proceeds of such Revolving Credit Borrowing
or such Swing Line Borrowing shall constitute a representation and warranty by
the Borrower that on the date of such Borrowing such statements are true):
(a) the representations and warranties contained in
Section 4.01 are correct in all material respects on and as of
the date of such Revolving Credit Borrowing or Swing Line
Borrowing, as the case may be, before and after giving effect to
such Revolving Credit Borrowing or Swing Line Borrowing, as the
case may be, and to the application of the proceeds therefrom,
as though made on and as of such date except to the extent such
representations and warranties expressly relate to an earlier
date, and
(b) no event has occurred and is continuing, or
would result from such Revolving Credit Borrowing or Swing Line
Borrowing, as the case may be, or from the application of the
proceeds therefrom, that constitutes a Default.
SECTION 3.03. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (i) the Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto, (ii) on
or before the date of such Competitive Bid Borrowing, but prior to such
Competitive Bid Borrowing, the Agent shall have received a Competitive Bid Note
payable to the order of such Lender for each of the one or more Competitive Bid
Advances to be made by such Lender as
43
38
part of such Competitive Bid Borrowing, in a principal amount equal to the
principal amount of the Competitive Bid Advance to be evidenced thereby and
otherwise on such terms as were agreed to for such Competitive Bid Advance in
accordance with Section 2.03, and (iii) on the date of such Competitive Bid
Borrowing the following statements shall be true (and each of the giving of the
applicable Notice of Competitive Bid Borrowing and the acceptance by the
Borrower of the proceeds of such Competitive Bid Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such
Competitive Bid Borrowing such statements are true):
(a) the representations and warranties contained in
Section 4.01 are correct in all material respects on and as of
the date of such Competitive Bid Borrowing, before and after
giving effect to such Competitive Bid Borrowing and to the
application of the proceeds therefrom, as though made on and as
of such date, and
(b) no event has occurred and is continuing, or
would result from such Competitive Bid Borrowing or from the
application of the proceeds therefrom, that constitutes a
Default.
SECTION 3.04. Determinations Under Section 3.01. For
purposes of determining compliance with the conditions specified in Section
3.01, each Lender shall be deemed to have consented to, approved or accepted or
to be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Agent responsible for the transactions contemplated by this
Agreement shall have received notice from such Lender prior to the date that
the Borrower, by notice to the Lenders, designates as the proposed Effective
Date, specifying its objection thereto. The Agent shall promptly notify the
Lenders and the Borrower of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware.
(b) The execution, delivery and performance by the
Borrower of this Agreement and the Notes, and the consummation
of the transactions contemplated hereby, are within the
Borrower's corporate powers, have been duly authorized by all
44
39
necessary corporate action, and do not contravene (i) the
Borrower's charter or by-laws or (ii) law or any contractual
restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action
by, and no notice to or filing with, any governmental authority
or regulatory body or any other third party is required for the
due execution, delivery and performance by the Borrower of this
Agreement or the Notes.
(d) This Agreement has been, and each of the Notes
when delivered hereunder will have been, duly executed and
delivered by the Borrower. This Agreement is, and each of the
Notes when delivered hereunder will be, the legal, valid and
binding obligation of the Borrower enforceable against the
Borrower in accordance with their respective terms.
(e) The Consolidated balance sheet of the Borrower
and its Subsidiaries as at January 1, 1995, and the related
Consolidated statements of income and cash flows of the Borrower
and its Subsidiaries for the fiscal year then ended, accompanied
by an opinion of Price Waterhouse LLP, independent public
accountants, and the Consolidated balance sheet of the Borrower
and its Subsidiaries as at October 1, 1995, and the related
Consolidated statements of income and cash flows of the Borrower
and its Subsidiaries for the nine months then ended, duly
certified by the chief financial officer of the Borrower, copies
of which have been furnished to each Lender, fairly present,
subject, in the case of said balance sheet as at October 1,
1995, and said statements of income and cash flows for the nine
months then ended, to year-end audit adjustments, the
Consolidated financial condition of the Borrower and its
Subsidiaries as at such date and the Consolidated results of the
operations of the Borrower and its Subsidiaries for the periods
ended on such dates, all in accordance with generally accepted
accounting principles consistently applied. Between January 1,
1995 and the date hereof, there has been no Material Adverse
Change.
(f) There is no pending or threatened action, suit,
investigation, litigation or proceeding, including, without
limitation, any Environmental Action, affecting the Borrower or
any of its Subsidiaries before any court, governmental agency or
arbitrator that (i) is pending or threatened on the date hereof
and is reasonably likely to have a Material Adverse Effect or
(ii) purports to affect the legality, validity or enforceability
of this Agreement or any Note or the consummation of the
transactions contemplated hereby.
(g) The Borrower is not, and immediately after the
application by the Borrower of the proceeds of each Advance will
not be an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
45
40
(h) After giving effect to the application of the
proceeds of each Advance, not more than 25% of the value of the
assets of the Borrower and its Subsidiaries (as determined in
good faith by the Borrower) subject to the provisions of Section
5.02(a) or subject to any restriction contained in any agreement
or instrument between the Borrower and any Lender or any
Affiliate of any Lender relating to Debt and within the scope of
Section 6.01(d) will consist of or be represented by Margin
Stock.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any
Advance shall remain unpaid or any Lender shall have any Commitment hereunder,
the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause
each of its Subsidiaries to comply, in all material respects,
with all applicable laws, rules, regulations and orders, such
compliance to include, without limitation, compliance with ERISA
and Environmental Laws, except to the extent that any failures
to so comply, individually or in the aggregate, would not be
reasonably likely to have a Material Adverse Effect; provided,
however, that neither the Borrower nor any of its Subsidiaries
shall be required to comply with any law, rule, regulation or
order to the extent it is being contested in good faith and by
proper proceedings and as to which appropriate reserves are
being maintained.
(b) Payment of Taxes, Etc. Pay and discharge, and
cause each of its Subsidiaries to pay and discharge, before the
same shall become delinquent, all material taxes, assessments
and governmental charges or levies imposed upon it or upon its
property; provided, however, that neither the Borrower nor any
of its Subsidiaries shall be required to pay or discharge any
such tax, assessment, charge or claim that is being contested in
good faith and by proper proceedings and as to which appropriate
reserves are being maintained.
(c) Maintenance of Insurance. Maintain, and cause
each of its Significant Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or associations in
such amounts and covering such risks as is usually carried by
companies engaged in similar businesses and owning similar
properties in the same general areas in which the Borrower or
such Significant Subsidiary operates.
(d) Preservation of Corporate Existence, Etc.
Preserve and maintain its corporate existence, rights (charter
and statutory) and franchises if the loss or failure to maintain
the same could, individually or in the aggregate, be reasonably
likely to have
46
41
a Material Adverse Effect; provided, however, that the Borrower
may consummate any merger or consolidation permitted under
Section 5.02(b).
(e) Visitation Rights. At any reasonable time and
from time to time on reasonable notice and at reasonable
intervals, permit the Agent or any of the Lenders, or any agents
or representatives thereof, to visit the properties of the
Borrower and any of its Subsidiaries and to discuss the affairs,
finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers or directors and, during
the continuance of any Default, to examine and make copies of
and abstracts from the records and books of account of the
Borrower and any of its Subsidiaries and to discuss the affairs,
finances and accounts of the Borrower and any of its
Subsidiaries with their independent certified public
accountants.
(f) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in
which entries shall be made of all financial transactions and
the assets and business of the Borrower and each such Subsidiary
in accordance with generally accepted accounting principles in
effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and
preserve, and cause each of its Significant Subsidiaries to
maintain and preserve, all of its properties that are used or
useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted, except to the extent
that any failure to do so, individually or in the aggregate,
would not be reasonably likely to have a Material Adverse
Effect.
(h) Primary Business. The Borrower shall continue
to be engaged primarily in lines of business as carried on at
the date hereof or lines of business related thereto.
(i) Reporting Requirements. Furnish to the
Lenders:
(i) as soon as available and in any event within
55 days after the end of each of the first three quarters
of each fiscal year of the Borrower, the Consolidated
balance sheet of the Borrower and its Subsidiaries as of
the end of such quarter and Consolidated statements of
income and cash flows of the Borrower and its Subsidiaries
for the period commencing at the end of the previous fiscal
year and ending with the end of such quarter, duly
certified (subject to year-end audit adjustments) by the
chief financial officer of the Borrower as having been
prepared in accordance with generally accepted accounting
principles and certificates of the chief financial officer
of the Borrower as to compliance with the terms of this
Agreement, provided that in the event of any change in GAAP
used in the preparation of such financial statements, the
Borrower shall also provide, if necessary for the
determination of compliance
47
42
with Section 5.03, a statement of reconciliation conforming
such financial statements to GAAP;
(ii) as soon as available and in any event
within 105 days after the end of each fiscal year of the
Borrower, a copy of the annual audit report for such year
for the Borrower and its Subsidiaries, containing the
Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal year and
Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for such fiscal year, in each
case accompanied by an opinion by Price Waterhouse LLP or
other independent public accountants of recognized national
standing, provided that in the event of any change in GAAP
used in the preparation of such financial statements, the
Borrower shall also provide, if necessary for the
determination of compliance with Section 5.03, a statement
of reconciliation conforming such financial statements to
GAAP;
(iii) as soon as possible and in any event
within seven days after the occurrence of each Default
continuing on the date of such statement, a statement of
the chief financial officer of the Borrower setting forth
details of such Default and the action that the Borrower
has taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing
thereof, copies of all quarterly and annual reports and
proxy solicitations that the Borrower sends to its public
securityholders generally, and copies of all reports on
Form 8-K and registration statements for the public
offering (other than pursuant to employee Plans) of
securities that the Borrower files with the Securities and
Exchange Commission or any national securities exchange;
(v) promptly after the commencement thereof,
notice of all actions and proceedings before any court,
governmental agency or arbitrator affecting the Borrower or
any of its Subsidiaries of the type described in Section
4.01(f); and
(vi) such other information respecting the
Borrower or any of its Subsidiaries as any Lender through
the Agent may from time to time reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will not:
(a) Liens, Etc. Create or suffer to exist, or
permit any of its Subsidiaries to create or suffer to exist, any
Lien on or with respect to any of its properties (which for
purposes of this subsection (a) shall be deemed not to include
shares of the Borrower's
48
43
capital stock), whether now owned or hereafter acquired, or
assign, or permit any of its Subsidiaries to assign, any right
to receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real
property or equipment acquired or held by the Borrower or
any Subsidiary in the ordinary course of business to secure
the purchase price of such property or equipment or to
secure Debt incurred solely for the purpose of financing
the acquisition of such property or equipment, or Liens
existing on such property or equipment at the time of its
acquisition (other than any such Liens created in
contemplation of such acquisition that were not incurred to
finance the acquisition of such property) or extensions,
renewals or replacements of any of the foregoing for the
same or a lesser amount, provided, however, that no such
Lien shall extend to or cover any properties of any
character other than the real property or equipment being
acquired (or, in the case of improvements to real property,
the real property being improved), and no such extension,
renewal or replacement shall extend to or cover any
properties not theretofore subject to the Lien being
extended, renewed or replaced,
(iii) the Liens existing on the Effective Date
and described on Schedule 5.02(a) hereto,
(iv) Liens securing Debt payable to the
Borrower,
(v) other Liens securing Debt in an aggregate
principal amount not to exceed at any time outstanding an
amount equal to 20% of Consolidated Shareholders' Equity,
and
(vi) the replacement, extension or renewal of
any Lien permitted by clause (iii) above upon or in the
same property theretofore subject thereto or the
replacement, extension or renewal (without increase in the
amount) of the Debt secured thereby.
(b) Mergers, Etc. Merge or consolidate with or
into, or convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) all
or substantially all of its assets (whether now owned or
hereafter acquired) to, any Person, provided that the Borrower
may merge or consolidate with any other Person so long as the
Borrower is the surviving corporation and provided further that
no Default shall have occurred and be continuing at the time of
such proposed transaction or would result therefrom.
49
44
(c) Accounting Changes. Make or permit, or permit
any of its Subsidiaries to make or permit, any change in
accounting policies or reporting practices, except as permitted
by generally accepted accounting principles and, in the case of
any significant change, concurred with by the Borrower's
independent public accountants.
SECTION 5.03. Financial Covenant. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will maintain Consolidated Shareholders' Equity of not less than
$850,000,000.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of
any Advance when the same becomes due and payable (or, if any
such failure is due solely to technical or administrative
difficulties relating to the transfer of such principal payment,
within two Business Days after the same becomes due and
payable); or the Borrower shall fail to pay any interest on any
Advance or make any other payment of fees or other amounts
payable under this Agreement or any Note within three Business
Days after the same becomes due and payable; or
(b) Any representation or warranty made by the
Borrower herein or by the Borrower (or any of its officers) in
connection with this Agreement shall prove to have been
incorrect in any material respect when made; or
(c) (i) The Borrower shall fail to perform or
observe any term, covenant or agreement contained in Section
5.01(d) or (i)(iii), 5.02 or 5.03, or (ii) the Borrower shall
fail to perform or observe any other term, covenant or agreement
contained in this Agreement on its part to be performed or
observed if such failure shall remain unremedied for 20 days
after written notice thereof shall have been given to the
Borrower by the Agent or any Lender; or
(d) The Borrower or any of its Subsidiaries shall
fail to pay any principal of or premium or interest on any Debt
(other than Non-Recourse Debt) that is outstanding in a
principal amount of at least $40,000,000 in the aggregate (but
excluding Debt outstanding hereunder) of the Borrower or such
Subsidiary (as the case may be), when the same becomes due and
payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall
continue after the applicable
50
45
grace period, if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating
to any such Debt and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if
the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Debt; or
(e) The Borrower or any of its Significant
Subsidiaries shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its
debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by
or against the Borrower or any of its Significant Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any
substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for
a period of 60 days, or in such proceeding the entry of an order
for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any
substantial part of its property shall occur; or the Borrower or
any of its Significant Subsidiaries shall take any corporate
action to authorize any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order of a court of competent
jurisdiction for the payment of money in excess of $20,000,000
shall be rendered against the Borrower or any of its Significant
Subsidiaries and either (i) enforcement proceedings shall have
been legally commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 60 consecutive days
during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect
provided, however, that any such judgment or order shall not be
an Event of Default under this Section 6.01(f) if and for so
long as (x) the amount of such judgment or order is covered by a
valid and binding policy of insurance between the defendant and
the insurer covering payment thereof and (y) such insurer, which
shall be rated at least "A-" by A.M. Best Company, has been
notified of, and has not disputed the claim made for payment of,
the amount of such judgment or order; or
(g) (i) Any Person or two or more Persons acting in
concert (other than the ▇▇▇▇▇▇ Interests) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange
Act of 1934), directly or indirectly, of Voting Stock of the
Borrower (or other securities convertible into such Voting
Stock) representing 30% or more of the combined voting power of
all Voting Stock of the Borrower and such combined voting power
exceeds the
51
46
then current voting power of the Voting Stock of the Borrower
(or other securities convertible into such Voting Stock)
controlled by the ▇▇▇▇▇▇ Interests; or (ii) Continuing Directors
of the Borrower shall cease for any reason to constitute a
majority of the board of directors of the Borrower; or
(h) The Borrower or any of its ERISA Affiliates
shall incur liability as a result of one or more of the
following: (i) the occurrence of any ERISA Event; (ii) the
partial or complete withdrawal of the Borrower or any of its
ERISA Affiliates from a Multiemployer Plan; or (iii) the
reorganization or termination of a Multiemployer Plan; and, in
the reasonable opinion of the Required Lenders, such incurrence
would be likely to result in a Material Adverse Effect, provided
that any such liability in an amount not to exceed $20,000,000
shall be deemed not to be likely to result in a Material Adverse
Effect;
then, and in any such event, the Agent (i) shall at the request, or may with
the consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Notes,
all interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Notes, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby
expressly waived by the Borrower; provided, however, that in the event of an
actual or deemed entry of an order for relief with respect to the Borrower
under the Federal Bankruptcy Code, (A) the obligation of each Lender to make
Advances shall automatically be terminated and (B) the Notes, all such interest
and all such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender
hereby appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement as are
delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto. As to any matters not
expressly provided for by this Agreement (including, without limitation,
enforcement or collection of the Notes), the Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that the Agent shall not
52
47
be required to take any action that exposes the Agent to personal liability or
that is contrary to this Agreement or applicable law. The Agent agrees to give
to each Lender prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent
nor any of its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the Agent:
(i) may treat the payee of any Note as the holder thereof until the Agent
receives and accepts an Assignment and Acceptance entered into by the Lender
that is the payee of such Note, as assignor, and an Eligible Assignee, as
assignee, as provided in Section 8.07; (ii) may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of the Borrower or to inspect the property (including the
books and records) of the Borrower; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in
respect of this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier, telegram or telex)
reasonably believed by it to be genuine and signed or sent by the proper party
or parties.
SECTION 7.03. Citibank and Affiliates. With respect to
its Commitment, the Advances made by it and the Note issued to it, Citibank
shall have the same rights and powers under this Agreement as any other Lender
and may exercise the same as though it were not the Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Citibank in its individual capacity. Citibank and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of
business with, the Borrower, any of its Subsidiaries and any Person who may do
business with or own securities of the Borrower or any such Subsidiary, all as
if Citibank were not the Agent and without any duty to account therefor to the
Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon the Agent or
any other Lender and based on the financial statements referred to in Section
4.01 and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon
the Agent or any other Lender and based on such documents and information as it
shall deem appropriate
53
48
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to
indemnify the Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of the Revolving Credit Notes
then held by each of them (or if no Revolving Credit Notes are at the time
outstanding or if any Revolving Credit Notes are held by Persons that are not
Lenders, ratably according to the respective amounts of their Commitments),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against the Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by the Agent under this Agreement, provided that no
Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at
any time by giving written notice thereof to the Lenders and the Borrower and
may be removed at any time with or without cause by the Required Lenders. Upon
any such resignation or removal, the Required Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed
by the Required Lenders, and shall have accepted such appointment, within 30
days after the retiring Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Agent, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article VII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
SECTION 7.07. Co-Agent. Wachovia has been designated as
Co-Agent in recognition of its Commitment, and the use of such title does not
impose on Wachovia any duties or obligations greater than those of any other
Lender.
54
49
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of
any provision of this Agreement or the Revolving Credit Notes, nor consent to
any departure by the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Lenders, do any of
the following: (a) waive any of the conditions specified in Section 3.01, (b)
increase the Commitments of the Lenders other than as provided in Section
2.05(b), (c) reduce the principal of, or interest on, the Revolving Credit
Notes or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Revolving Credit
Notes or any fees or other amounts payable hereunder, (e) change the percentage
of the Commitments or of the aggregate unpaid principal amount of the Revolving
Credit Notes that shall be required for the Lenders or any of them to take any
action hereunder or (f) amend this Section 8.01; provided further that no
amendment, waiver or consent shall, unless in writing and signed by each Swing
Line Bank, in addition to the Lenders required above to take such action,
affect the rights or obligations of the Swing Line Banks under this Agreement;
and provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Lenders required above to
take such action, affect the rights or duties of the Agent under this Agreement
or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telecopier, telegraphic or telex communication) and telecopied, telegraphed,
telexed or delivered, if to the Borrower, at its address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: Treasurer; if to any Initial Lender,
at its Domestic Lending Office specified opposite its name on Schedule I
hereto; if to any other Lender, at its Domestic Lending Office specified in the
Assumption Agreement or the Assignment and Acceptance pursuant to which it
became a Lender; and if to the Agent, at its address at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇; or, as to the Borrower
or the Agent, at such other address as shall be designated by such party in a
written notice to the other parties and, as to each other party, at such other
address as shall be designated by such party in a written notice to the
Borrower and the Agent. All such notices and communications shall, when hand
delivered, telecopied, telegraphed or telexed, be effective when received.
Delivery by telecopier of an executed counterpart of any amendment or waiver of
any provision of this Agreement or the Notes or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.
55
50
SECTION 8.03. No Waiver; Remedies. No failure on the part
of any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower
agrees to pay on demand all reasonable out-of-pocket costs and expenses of the
Agent in connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, (A) all due
diligence, syndication (including printing, distribution and bank meetings),
transportation and duplication expenses, and (B) the reasonable fees and
expenses of counsel for the Agent with respect thereto and with respect to
advising the Agent as to its rights and responsibilities under this Agreement.
The Borrower further agrees to pay on demand all reasonable out-of-pocket costs
and expenses of the Agent and the Lenders, if any (including, without
limitation, reasonable counsel fees and expenses), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for the
Agent and each Lender in connection with the enforcement of rights under this
Section 8.04(a).
(b) The Borrower agrees to indemnify and hold
harmless the Agent and each Lender and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an "Indemnified
Party") from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of, or in
connection with the preparation for a defense of, any investigation, litigation
or proceeding arising out of, related to or in connection with the Notes, this
Agreement, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Advances, whether or not such
investigation, litigation or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnified Party or any other
Person or any Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated hereby are consummated, except to the extent such
claim, damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct or breach of its
obligations under this Agreement.
(c) If any payment of principal of, or Conversion
of, any Eurodollar Rate Advance or LIBO Rate Advance is made by the Borrower to
or for the account of a Lender other than on the last day of the Interest
Period for such Advance, as a result of a payment or Conversion pursuant to
Section 2.08(d) or (e), 2.09, 2.10 or 2.12, acceleration of the maturity of the
Notes pursuant to Section 6.01 or for any other reason, or by an Eligible
Assignee to a
56
51
Lender other than on the last day of an Interest Period for such Advance upon
an assignment of rights and obligations under this Agreement pursuant to
Section 8.07 as a result of a demand by the Borrower pursuant to Section
8.07(a), the Borrower shall, upon demand by such Lender (with a copy of such
demand to the Agent), pay to the Agent for the account of such Lender any
amounts required to compensate such Lender for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
(d) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in Sections 2.11, 2.14 and 8.04 shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under
the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence
and during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Agent to declare the Notes due and payable pursuant to the provisions of
Section 6.01, each Lender and each of its Affiliates is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Lender or such Affiliate to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement and the Note held by such Lender,
whether or not such Lender shall have made any demand under this Agreement or
such Note and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Borrower after any such set-off and application,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender and its Affiliates
under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Lender and its
Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become effective
upon satisfaction of the conditions precedent set forth in Section 3.01) when
it shall have been executed by the Borrower and the Agent and when the Agent
shall have been notified by each Initial Lender that such Initial Lender has
executed it and thereafter shall be binding upon and inure to the benefit of
the Borrower, the Agent and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders.
SECTION 8.07. Assignments and Participations. (a) Each
Lender may with the consent of the Agent and the Borrower (which consent shall
not be unreasonably withheld or
57
52
delayed) and, if demanded by the Borrower (following a demand by such Lender
pursuant to Section 2.11 or 2.14 or following such Lender's Downgrade) at a
time when no Default has occurred and is continuing upon at least five Business
Days' notice to such Lender and the Agent, will assign to one or more Persons
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Revolving Credit
Advances owing to it and the Revolving Credit Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a constant, and
not a varying, percentage of all rights and obligations under this Agreement
(other than any right to make Competitive Bid Advances, Competitive Bid
Advances owing to it and Competitive Bid Notes), (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender
or an assignment of all of a Lender's rights and obligations under this
Agreement, the amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and the
amount of the Commitment of such Lender remaining after such assignment shall
not be less than $10,000,000 or shall be zero, (iii) each such assignment shall
be to an Eligible Assignee, (iv) each such assignment made as a result of a
demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by
the Borrower after consultation with the Agent and shall be either an
assignment of all of the rights and obligations of the assigning Lender under
this Agreement or an assignment of a portion of such rights and obligations
made concurrently with another such assignment or other such assignments that
together cover all of the rights and obligations of the assigning Lender under
this Agreement, (v) no Lender shall be obligated to make any such assignment as
a result of a demand by the Borrower pursuant to this Section 8.07(a) unless
and until such Lender shall have received one or more payments from either the
Borrower or one or more Eligible Assignees in an aggregate amount at least
equal to the aggregate outstanding principal amount of the Advances owing to
such Lender, together with accrued interest thereon to the date of payment of
such principal amount and all other amounts payable to such Lender under this
Agreement, and (vi) unless such assignment is demanded by the Borrower, the
parties to each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance,
together with any Revolving Credit Note subject to such assignment and a
processing and recordation fee of $3,000. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto).
58
53
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee thereunder confirm
to and agree with each other and the other parties hereto as follows: (i)
other than as provided in such Assignment and Acceptance, such assigning Lender
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under this Agreement or any other instrument
or document furnished pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee confirms that it is
an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an assignee representing that it
is an Eligible Assignee, together with any Revolving Credit Note or Notes
subject to such assignment, the Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Exhibit C hereto, (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrower.
Within five Business Days after its receipt of such notice, the Borrower, at
its own expense, shall execute and deliver to the Agent in exchange for the
surrendered Revolving Credit Note a new Note to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a
Commitment hereunder, a new Revolving Credit Note to the order of the assigning
Lender in an amount equal to the Commitment retained by it hereunder. Such new
Revolving Credit Note or Notes shall be in an aggregate principal amount equal
to the aggregate principal amount of such surrendered Revolving Credit Note or
Notes, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A-1 hereto.
(d) The Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the
59
54
recordation of the names and addresses of the Lenders and the Commitment of,
and principal amount of the Advances owing to, each Lender from time to time
(the "Register"). The entries in the Register shall be conclusive and binding
for all purposes, absent manifest error, and the Borrower, the Agent and the
Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or
more banks or other entities (other than the Borrower or any of its Affiliates)
in or to all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the
Advances owing to it and the Note or Notes held by it) with the consent of the
Borrower (which consent shall not be unreasonably withheld or delayed);
provided, however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrower hereunder) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender shall
remain the holder of any such Note for all purposes of this Agreement, (iv) the
Borrower, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by the
Borrower therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation.
(f) Any Lender may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 8.07, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Borrower furnished to
such Lender by or on behalf of the Borrower; provided that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
relating to the Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth
in this Agreement, any Lender may at any time create a security interest in all
or any portion of its rights under this Agreement (including, without
limitation, the Advances owing to it and the Note or Notes held by it) in favor
of any Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System.
60
55
SECTION 8.08. Confidentiality. Neither the Agent nor any
Lender shall disclose any Confidential Information to any other Person without
the consent of the Borrower, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, accountants, auditors,
counsel, agents and advisors and, as contemplated by Section 8.07(f), to actual
or prospective assignees and participants, and then only on a confidential
basis, (b) as required by any law, rule or regulation or judicial process, (c)
to any rating agency when required by it, provided that, prior to any such
disclosure, such rating agency shall undertake to preserve the confidentiality
of any Confidential Information relating to the Borrower received by it from
such Lender and (d) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
SECTION 8.09. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State
of New York.
SECTION 8.10. Execution in Counterparts. This Agreement
may be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the Notes, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement shall affect
any right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the Notes in any New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
61
56
SECTION 8.12. Waiver of Jury Trial. Each of the Borrower,
the Agent and the Lenders hereby irrevocably waives all right to trial by jury
in any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
THE WASHINGTON POST COMPANY
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------------------
Title: Vice President-Finance
CITIBANK, N.A.
as Agent
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.
as Co-Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Title: Senior Vice President
62
57
Initial Lenders
Swing Line
Commitment Commitment
---------- ----------
$50,000,000 $50,000,000 CITIBANK, N.A.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
$50,000,000 $50,000,000 WACHOVIA BANK OF GEORGIA, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Senior Vice President
$25,000,000 ▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
------------------------------------
Title: Senior Vice President
$25,000,000 0 CREDIT SUISSE
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Associate
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Member of Senior Management
$25,000,000 0 CRESTAR BANK
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
63
58
$25,000,000 0 DEUTSCHE BANK AG, NEW YORK
BRANCH AND/OR CAYMAN ISLANDS BRANCH
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Vice President
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
$25,000,000 0 THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
$25,000,000 0 FIRST NATIONAL BANK OF
MARYLAND
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Senior Vice President
$25,000,000 ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Senior Vice President
64
59
$25,000,000 0 UNION BANK OF SWITZERLAND, NEWYORK BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Title: Assistant Treasurer
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Title: Managing Director
$300,000,000 $100,000,000 Total of the Commitments
65
SCHEDULE I
The Washington Post Company
APPLICABLE LENDING OFFICES
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
---------------------- ----------------------- -------------------------
Citibank, N.A. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Wachovia Bank of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, N.A. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
The Bank of ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Credit Suisse ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Crestar Bank ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Deutsche Bank AG, Deutsche Bank AG, Deutsche Bank AG,
New York Branch New York Branch Cayman Islands Branch
and/or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
The First National Bank One First National Plaza One First National Plaza
of Chicago Mail Suite ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
First National Bank of ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇ 1800 K Street NW
Maryland Suite 1010 Suite 1010
Washington, DC 20006 ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
First Union National ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ TW-19 TW-19
Charlotte, NC 28288-0735 ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Union Bank of Switzerland ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
66
SCHEDULE 5.02(a)
EXISTING LIENS
None
67
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated: January 31, 1996
FOR VALUE RECEIVED, the undersigned, THE WASHINGTON
POST COMPANY, a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY
to the order of _________________________ (the "Lender") for the account of its
Applicable Lending Office on the Termination Date (each as defined in the
Credit Agreement referred to below) the principal sum of U.S.$[amount of the
Lender's Commitment in figures] or, if less, the aggregate principal amount of
the Revolving Credit Advances and Swing Line Advances made by the Lender to the
Borrower pursuant to the Credit Agreement dated as of January 31, 1996 among
the Borrower, the Lender and certain other lenders parties thereto, Citibank,
N.A., as Agent for the Lender and such other lenders, and Wachovia Bank of
Georgia, N.A., as Co-Agent (as amended or modified from time to time, the
"Credit Agreement"; the terms defined therein being used herein as therein
defined), outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid
principal amount of each Revolving Credit Advance and each Swing Line Advance
from the date of such Revolving Credit Advance or such Swing Line Advance, as
the case may be, until such principal amount is paid in full, at such interest
rates, and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money
of the United States of America to Citibank, N.A., as Agent, at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in same day funds. Each Revolving Credit
Advance owing to the Lender by the Borrower pursuant to the Credit Agreement,
and all payments made on account of principal thereof, shall be recorded by the
Lender and, prior to any transfer hereof, endorsed on the grid attached hereto
which is part of this Promissory Note.
This Promissory Note is one of the Revolving Credit
Notes referred to in, and is entitled to the benefits of, the Credit Agreement.
The Credit Agreement, among other things, (i) provides for the making of
Revolving Credit Advances and Swing Line Advances by the Lender to the Borrower
from time to time in an aggregate amount not to exceed at any time outstanding
the U.S. dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such Revolving Credit Advance and Swing Line Advance being
evidenced
68
2
by this Promissory Note, and (ii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon
the terms and conditions therein specified.
THE WASHINGTON POST COMPANY
By
------------------------------
Title:
69
ADVANCES AND PAYMENTS OF PRINCIPAL
======================================================================================================
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
======================================================================================================
70
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated: January 31, 1996
FOR VALUE RECEIVED, the undersigned, THE WASHINGTON
POST COMPANY, a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY
to the order of _________________________ (the "Lender") for the account of its
Applicable Lending Office (as defined in the Credit Agreement dated as of
January 31, 1996 among the Borrower, the Lender and certain other lenders
parties thereto, Citibank, N.A., as Agent for the Lender and such other
lenders, and Wachovia Bank of Georgia, N.A., as Co-Agent (as amended or
modified from time to time, the "Credit Agreement"; the terms defined therein
being used herein as therein defined)), on _______________, 199_, the principal
amount of U.S.$_______________.
The Borrower promises to pay interest on the unpaid
principal amount hereof from the date hereof until such principal amount is
paid in full, at the interest rate and payable on the interest payment date or
dates provided below:
[Interest Rate: _____% per annum (calculated on the basis of a year of
_____ days for the actual number of days elapsed).]
Both principal and interest are payable in lawful money
of the United States of America to Citibank, N.A. for the account of the
Lender at the office of Citibank, N.A., at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ in same day funds.
This Promissory Note is one of the Competitive Bid
Notes referred to in, and is entitled to the benefits of, the Credit Agreement.
The Credit Agreement, among other things, contains provisions for acceleration
of the maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest
and notice of any kind. No failure to exercise, and no delay in exercising,
any rights hereunder on the part of the holder hereof shall operate as a waiver
of such rights.
71
2
This Promissory Note shall be governed by, and
construed in accordance with, the laws of the State of New York.
THE WASHINGTON POST COMPANY
By
---------------------------
Title:
72
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, The Washington Post Company, refers to
the Credit Agreement, dated as of January 31, 1996 (as amended or modified from
time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined), among the undersigned, certain Lenders parties
thereto, Citibank, N.A., as Agent for said Lenders, and Wachovia Bank of
Georgia, N.A., as Co-Agent, and hereby gives you notice, irrevocably, pursuant
to Section 2.02 of the Credit Agreement that the undersigned hereby requests a
Revolving Credit Borrowing under the Credit Agreement, and in that connection
sets forth below the information relating to such Revolving Credit Borrowing
(the "Proposed Revolving Credit Borrowing") as required by Section 2.02(a) of
the Credit Agreement:
(i) The Business Day of the Proposed Revolving
Credit Borrowing is _______________, 199_.
(ii) The Type of Advances comprising the Proposed
Revolving Credit Borrowing is [Base Rate Advances] [Eurodollar Rate
Advances].
(iii) The aggregate amount of the Proposed
Revolving Credit Borrowing is $_______________.
[(iv) The initial Interest Period for each
Eurodollar Rate Advance made as part of the Proposed Revolving Credit
Borrowing is _____ month[s].]
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the
Proposed Revolving Credit Borrowing:
(A) the representations and warranties contained
in Section 4.01 of the Credit Agreement are correct in all material
respects, before and after giving effect to the Proposed Revolving
Credit Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date, except to the extent they
expressly relate to an earlier date; and
73
2
(B) no event has occurred and is continuing, or
would result from such Proposed Revolving Credit Borrowing or from the
application of the proceeds therefrom, that constitutes a Default.
Very truly yours,
THE WASHINGTON POST COMPANY
By
---------------------------
Title:
74
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, The Washington Post Company, refers to
the Credit Agreement, dated as of January 31, 1996 (as amended or modified from
time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined), among the undersigned, certain Lenders parties
thereto, Citibank, N.A., as Agent for said Lenders, and Wachovia Bank of
Georgia, N.A., as Co-Agent, and hereby gives you notice, irrevocably, pursuant
to Section 2.03 of the Credit Agreement that the undersigned hereby requests a
Competitive Bid Borrowing under the Credit Agreement, and in that connection
sets forth the terms on which such Competitive Bid Borrowing (the "Proposed
Competitive Bid Borrowing") is requested to be made:
(A) Date of Competitive Bid Borrowing ________________________
(B) Amount of Competitive Bid Borrowing ________________________
(C) [Maturity Date] [Interest Period] ________________________
(D) Interest Rate Basis ________________________
(E) Interest Payment Date(s) ________________________
(F) ___________________ ________________________
(G) ___________________ ________________________
(H) ___________________ ________________________
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the
Proposed Competitive Bid Borrowing:
(a) the representations and warranties contained
in Section 4.01 are correct in all material respects, before and after
giving effect to the Proposed Competitive Bid Borrowing and to the
application of the proceeds therefrom, as though made on and as of
such date, except to the extent they expressly relate to an earlier
date;
75
2
(b) no event has occurred and is continuing, or
would result from the Proposed Competitive Bid Borrowing or from the
application of the proceeds therefrom, that constitutes a Default; and
(c) the aggregate amount of the Proposed
Competitive Bid Borrowing and all other Borrowings to be made on the
same day under the Credit Agreement is within the aggregate amount of
the Unused Commitments of the Lenders.
The undersigned hereby confirms that the Proposed
Competitive Bid Borrowing is to be made available to it in accordance with
Section 2.03(a)(v) of the Credit Agreement.
Very truly yours,
THE WASHINGTON POST COMPANY
By
--------------------------
Title:
76
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of
January 31, 1996 (as amended or modified from time to time, the "Credit
Agreement") among The Washington Post Company, a Delaware corporation (the
"Borrower"), the Lenders (as defined in the Credit Agreement), Citibank, N.A.,
as agent for the Lenders (the "Agent"), and Wachovia Bank of Georgia, N.A., as
co-agent. Terms defined in the Credit Agreement are used herein with the same
meaning.
The "Assignor" and the "Assignee" referred to on
Schedule I hereto agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement as of the date hereof (other than in respect of Competitive Bid
Advances and Competitive Bid Notes) equal to the percentage interest specified
on Schedule 1 hereto of all outstanding rights and obligations under the Credit
Agreement (other than in respect of Competitive Bid Advances and Competitive
Bid Notes). After giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Revolving Credit Advances owing to the
Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that
it is the legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse claim; (ii)
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
the Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; and (iv) attaches the
Revolving Credit Note held by the Assignor and requests that the Agent exchange
such Revolving Credit Note for a new Revolving Credit Note payable to the order
of the Assignee in an amount equal to the Commitment assumed by the Assignee
pursuant hereto or new Revolving Credit Notes payable to the order of the
Assignee in an amount equal to the Commitment assumed by the Assignee pursuant
hereto and the Assignor in an amount equal to the Commitment retained by the
Assignor under the Credit Agreement, respectively, as specified on Schedule 1
hereto.
3. The Assignee (i) confirms that it has
received a copy of the Credit Agreement, together with copies of the financial
statements referred to in Section 4.01 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (ii) agrees that it
will,
77
2
independently and without reliance upon the Agent, the Assignor or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement; (iii) confirms that it is an Eligible
Assignee; (iv) appoints and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers and discretion under the Credit
Agreement as are delegated to the Agent by the terms thereof, together with
such powers and discretion as are reasonably incidental thereto; (v) agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of the Credit Agreement are required to be performed by it as a
Lender; and (vi) attaches any U.S. Internal Revenue Service forms required
under Section 2.14 of the Credit Agreement.
4. Following the execution of this Assignment
and Acceptance, it will be delivered to the Agent for acceptance and recording
by the Agent. The effective date for this Assignment and Acceptance (the
"Effective Date") shall be the date of acceptance hereof by the Agent, unless
otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the
Agent, as of the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the
Agent, from and after the Effective Date, the Agent shall make all payments
under the Credit Agreement and the Revolving Credit Notes in respect of the
interest assigned hereby (including, without limitation, all payments of
principal, interest and facility fees with respect thereto) to the Assignee.
The Assignor and Assignee shall make all appropriate adjustments in payments
under the Credit Agreement and the Revolving Credit Notes for periods prior to
the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be
governed by, and construed in accordance with, the laws of the State of New
York.
8. This Assignment and Acceptance may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of Schedule 1 to this
Assignment and Acceptance by telecopier shall be effective as delivery of a
manually executed counterpart of this Assignment and Acceptance.
78
3
IN WITNESS WHEREOF, the Assignor and the Assignee have
caused Schedule 1 to this Assignment and Acceptance to be executed by their
officers thereunto duly authorized as of the date specified thereon.
79
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: $__________
Aggregate outstanding principal amount of Revolving Credit Advances assigned: $__________
Principal amount of Revolving Credit Note payable to Assignee: $__________
Principal amount of Revolving Credit Note payable to Assignor: $__________
Effective Date:* _______________, 199_
[NAME OF ASSIGNOR], as Assignor
By
-------------------------------
Title:
Dated: _______________, 199_
[NAME OF ASSIGNEE], as Assignee
By
-------------------------------
Title:
Dated: _______________, 199_
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
--------------------
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
80
2
Accepted and Approved this
__________ day of _______________, 199_
CITIBANK, N.A., as Agent
By
-------------------------------------------------
Title:
Approved this __________ day of _______________, 199_
THE WASHINGTON POST COMPANY
By
-------------------------------------------------
Title:
81
EXHIBIT D - FORM OF
ASSUMPTION AGREEMENT
Dated: ________
The Washington Post Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Citibank, N.A., as Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of
January 31, 1996 among The Washington Post Company (the "Borrower"), the
Lenders parties thereto, Citibank, N.A., as Agent, and Wachovia Bank of
Georgia, N.A., as Co-Agent (the "Credit Agreement"; terms defined therein being
used herein as therein defined), for such Lenders.
The undersigned (the "Assuming Lender") proposes to
become an Assuming Lender pursuant to Section 2.05(b) of the Credit Agreement
and, in that connection, hereby agrees that it shall become a Lender for
purposes of the Credit Agreement on [applicable Increase Date] and that its
Commitment shall as of such date be $__________.
The undersigned (i) confirms that it has received a
copy of the Credit Agreement, together with copies of the financial statements
referred to in Section 4.01(e) thereof, the most recent financial statements
referred to in Section 5.01(i) thereof and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Assumption Agreement; (ii) agrees that it will, independently
and without reliance upon the Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) appoints and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (iv) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
82
2
Agreement are required to be performed by it as a Lender; (v) confirms that it
is an Eligible Assignee; (vi) specifies as its Lending Office (and address for
notices) the offices set forth beneath its name on the signature pages hereof;
and (vii) attaches the forms prescribed by the Internal Revenue Service of the
United States required under Section 2.14 of the Credit Agreement.
The Assuming Lender requests that the Borrower deliver
to the Agent (to be promptly delivered to the Assuming Lender) a Revolving
Credit Note payable to the order of the Assuming Lender, dated as of the
[Increase Date] and substantially in the form of Exhibit A-1 to the Credit
Agreement.
The effective date for this Assumption Agreement shall
be [applicable Increase Date]. Upon delivery of this Assumption Agreement to
the Borrower and the Agent, and satisfaction of all conditions imposed under
Section 2.05(b) as of [date specified above], the undersigned shall be a party
to the Credit Agreement and have the rights and obligations of a Lender
thereunder. As of [date specified above], the Agent shall make all payments
under the Credit Agreement in respect of the interest assumed hereby
(including, without limitation, all payments of principal, interest and
commitment fees) to the Assuming Lender.
This Assumption Agreement may be executed in
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart by telecopier shall be effective as delivery of a manually executed
counterpart of this Assumption Agreement.
83
3
This Assumption Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
Very truly yours,
[NAME OF ASSUMING LENDER]
By
------------------------
Name:
Title:
Domestic Lending Office
(and address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Acknowledged and Agreed to:
THE WASHINGTON POST COMPANY
By
-------------------------
Name:
Title:
84
EXHIBIT E - FORM OF
OPINION OF COUNSEL
FOR THE BORROWER
[Effective Date]
To each of the Lenders parties
to the Credit Agreement dated
as of January 31, 1996 among
The Washington Post Company,
said Lenders, Citibank, N.A., as
Agent for said Lenders, and
Wachovia Bank of Georgia, N.A.,
as Co-Agent, to Citibank, N.A.,
as Agent,and to Wachovia Bank of
Georgia, N.A., as Co-Agent
The Washington Post Company
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
3.01(h)(iv) of the Credit Agreement, dated as of January 31, 1996 (the "Credit
Agreement"), among The Washington Post Company (the "Borrower"), the Lenders
parties thereto, Citibank, N.A., as Agent for said Lenders, and Wachovia Bank
of Georgia, N.A., as Co-Agent. Terms defined in the Credit Agreement are used
herein as therein defined.
I am the General Counsel of the Borrower and as such I am
familiar with the Credit Agreement and the corporate proceedings taken by the
Borrower to authorize the execution and delivery of the Credit Agreement.
For purposes of this opinion, I have examined:
(1) The Credit Agreement.
(2) The documents furnished by the Borrower pursuant to
Article III of the Credit Agreement.
85
2
(3) The Certificate of Incorporation of the Borrower and
all amendments thereto (the "Charter").
(4) The by-laws of the Borrower and all amendments
thereto (the "By-laws").
(5) A certificate of the Secretary of State of Delaware,
dated _______________, 199_, attesting to the continued corporate existence
and good standing of the Borrower in that State.
In addition, I have examined the originals, or copies
certified to my satisfaction, of such other corporate records of the Borrower,
certificates of public officials and of officers of the Borrower, and
agreements, instruments and other documents, as I have deemed necessary as a
basis for the opinions expressed below. As to questions of fact material to
such opinions, I have, when relevant facts were not independently established
by me, relied upon certificates of the Borrower or its officers or of public
officials. I have assumed the due execution and delivery, pursuant to due
authorization, of the Credit Agreement by the Initial Lenders, the Agent and
the Co-Agent.
My opinions expressed below are limited to the law of the
State of New York, the General Corporation Law of the State of Delaware and the
Federal law of the United States.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the following opinion:
1. The Borrower is a corporation validly existing and in
good standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the
Borrower of the Credit Agreement and the Notes, and the consummation of the
transactions contemplated thereby, are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action, and do
not contravene (i) the Charter or the By-laws or (ii) any law, rule or
regulation applicable to the Borrower (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System) or
(iii) to the best of my knowledge after appropriate inquiry, (x) any
contractual restriction or (y) any legal restriction contained in orders,
writs, judgments, awards, injunctions or decrees applicable to the Borrower
or its assets, in each case that affects or purports to affect the
Borrower's right to borrow money or the Borrower's obligations under the
Credit Agreement or Notes. The Credit Agreement and the Notes delivered on
the date hereof have been duly executed and delivered on behalf of the
Borrower.
86
3
3. No authorization, approval or other action by, and no
notice to or filing with, any United States Federal, New York or, to the
extent required under the General Corporation Law of the State of Delaware,
Delaware governmental authority or regulatory body is required for the due
execution, delivery and performance by the Borrower of the Credit Agreement
and the Notes.
4. The Credit Agreement is, and when executed and
delivered in connection with Borrowings, the Notes will be, legal, valid
and binding obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms.
5. To the best of my knowledge after appropriate
inquiry, there are no pending or overtly threatened actions or proceedings
against the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that purport to affect the legality,
validity, binding effect or enforceability of the Credit Agreement or any
of the Notes or the consummation of the transactions contemplated thereby
or that are likely to have a materially adverse effect upon the financial
condition or operations of the Borrower and its Subsidiaries taken as a
whole.
The opinions set forth above are subject to the following
qualifications:
(a) My opinion in paragraph 4 above as to enforceability
is subject to the effect of any applicable bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar law affecting creditors' rights
generally.
(b) My opinion in paragraph 4 above as to enforceability
is subject to the effect of general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether considered in a proceeding in equity or
at law).
(c) Insofar as provisions contained in the Credit
Agreement provide for indemnification, the enforceability thereof may be
limited by public policy considerations.
(d) I express no opinion as to (i) Section 2.15 of the
Credit Agreement insofar as it provides that any Lender purchasing a
participation from another Lender pursuant thereto may exercise set-off or
similar rights with respect to such participation and (ii) the effect of
the law of any jurisdiction other than the State of New York wherein any
Lender may be located or wherein enforcement of the Credit Agreement or the
Notes may be sought that limits the rates of interest legally chargeable or
collectible.
87
4
I am aware that Shearman & Sterling will rely upon the
opinions set forth in paragraphs 1, 2 and 3 of this opinion in rendering their
opinion furnished pursuant to Section 3.01 of the Credit Agreement.
Very truly yours,