Exhibit 4.3
CONSENT AND AMENDMENT NO. 1 TO THE
5-YEAR CREDIT AGREEMENT
Dated as of August 13, 2003
CONSENT AND AMENDMENT NO. 1 TO THE 5-YEAR CREDIT AGREEMENT (this
"Amendment") among THE WASHINGTON POST COMPANY, a Delaware corporation (the
"Borrower"), the banks, financial institutions and other institutional lenders
parties to the Credit Agreement referred to below (collectively, the
"Lenders") and CITIBANK, N.A., as agent (the "Agent") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders and the Agent have entered into a
5-Year Credit Agreement dated as of August 14, 2002 (the "Credit Agreement").
Capitalized terms not otherwise defined in this Amendment have the same
meanings as specified in the Credit Agreement.
(2) The Borrower has proposed to undertake an internal restructuring
pursuant to which the Borrower will merge with a wholly owned Subsidiary of a
newly formed corporate parent of the Borrower and transfer its assets and
liabilities, other than the assets and liabilities relating to the Borrower's
newspaper publishing business, to such new corporate parent (the
"Restructuring"). As a part of the Restructuring, the new corporate parent
(the "New Borrower") and the Borrower will enter into an assignment and
assumption agreement whereby the New Borrower will become the "Borrower" under
the Credit Agreement. The Borrower has requested that the Required Lenders (x)
consent to the Restructuring and the assignment and assumption agreement
described above, and (y) agree to amend the Credit Agreement as hereinafter
set forth.
(3) The Required Lenders are, on the terms and conditions stated
below, willing to grant the request of the Borrower and the Borrower and the
Required Lenders have agreed to amend the Credit Agreement as hereinafter set
forth.
SECTION 1. Consent to Restructuring. Effective as of the date hereof
and subject to the satisfaction of the conditions precedent set forth in
Section 3, the Required Lenders hereby consent to the Restructuring and to the
assignment and assumption of the rights and obligations of the Borrower under
the Credit Agreement as described above.
SECTION 2. Amendments to Credit Agreement. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 3, hereby amended as follows:
(a) Section 1.01 is amended by adding in appropriate alphabetical
order the following definitions:
"Borrower" has the meaning specified in the recital or parties to
this Agreement, provided that upon the completion of the Restructuring
and the
satisfaction of the conditions set forth in Section 5.01(j), the Borrower
shall be the New Borrower.
"Loan Document" means this Agreement, the Notes and, after the
Restructuring, the Subsidiary Guaranty and the New Borrower Assignment.
"Loan Party" means the Borrower and, so long as the Subsidiary
Guaranty is in effect, the Subsidiary Guarantor.
"New Borrower" means, upon the completion of the Restructuring, the
new parent holding company that is the corporate parent of the Newspaper
Subsidiary.
"New Borrower Assignment" has the meaning specified in Section
5.01(j).
"Newspaper Subsidiary" has the meaning specified in the definition
of "Restructuring".
"Restructuring" means an internal restructuring of the Borrower
pursuant to which the Borrower merges with a wholly owned Subsidiary of
the New Borrower and transfers its assets and liabilities, other than the
newspaper publishing business, to the New Borrower. Thereafter the
Borrower shall be a wholly owned subsidiary of the New Borrower and shall
be referred to as the "Newspaper Subsidiary".
"Subsidiary Guaranty" has the meaning specified in Section 5.01(j).
(b) The definition of "Significant Subsidiary" in Section 1.01 is
amended by adding to the end thereof the phrase "and shall include, so long as
the Subsidiary Guaranty is in effect, the Newspaper Subsidiary".
(c) Section 3.02(a) is amended by deleting the phrase "contained in
Section 4.01" and substituting therefor the phrase "contained in Section 4.01
and, so long as the Subsidiary Guaranty is in effect, in Section 6 of the
Subsidiary Guaranty".
(d) Section 3.03(a) is amended by deleting the phrase "contained in
Section 4.01" and substituting therefor the phrase "contained in Section 4.01
and, so long as the Subsidiary Guaranty is in effect, in Section 6 of the
Subsidiary Guaranty".
(e) Section 5.01(d) is amended in full to read as follows:
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and so long as the Newspaper Subsidiary is in effect, cause the Newspaper
Subsidiary to preserve and maintain, its corporate or other legal
existence, rights (charter and statutory) and franchises if the loss or
failure to maintain the same could, individually or in the aggregate, be
reasonably likely to have a Material Adverse Effect; provided, however,
that the Borrower and the Subsidiary Guarantor may consummate any merger,
consolidation or other transaction permitted under Section 5.02(b),
including the Restructuring.
(f) Section 5.01 is amended by adding to the end thereof a new
subsection (j) to read as follows:
(j) Restructuring. Deliver to the Agent not later than five (5)
Business Days after the completion of the Restructuring, in sufficient
copies for each Lender:
(i) An assignment and assumption agreement, substantially in
the form of Exhibit G hereto (the "New Borrower Assignment"), duly
executed by the parties thereto.
(ii) Certified copies of the resolutions of the Board of
Directors of (x) the New Borrower approving or ratifying the New
Borrower Assignment and the assumption by the New Borrower of the
obligations of the Borrower under the Credit Agreement and the Notes
and (y) the Newspaper Subsidiary approving or ratifying the
Subsidiary Guaranty.
(iii) A certificate of the Secretary or an Assistant Secretary
of each of the New Borrower and the Newspaper Subsidiary certifying
the names and true signatures of the officers of such Loan Party
authorized to sign each Loan Document to which it is a party and the
other documents to be delivered by it hereunder.
(iv) A guaranty in substantially the form of Exhibit F hereto
(as amended, supplemented or otherwise modified from time to time,
the "Subsidiary Guaranty"), duly executed by the Newspaper
Subsidiary.
(v) Favorable opinions of in-house counsel for each of the New
Borrower and the Newspaper Subsidiary, substantially in the forms of
Exhibits E-2 and E-3 hereto, respectively.
(g) Section 5.02(b) is amended in full to read as follows:
(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, or so long as the
Subsidiary Guaranty is in effect, permit the Newspaper Subsidiary to do
any of the foregoing, provided that the Borrower and the Newspaper
Subsidiary may (i) merge or consolidate with any other Person so long as
the Borrower or the Newspaper Subsidiary, as the case may be, is the
surviving entity and (ii) consummate the Restructuring and provided
further that no Default shall have occurred and be continuing at the time
of such proposed transaction or would result therefrom.
(h) Section 6.01(b) is amended in full to read as follows:
(b) Any representation or warranty made by any Loan Party in any
Loan Document or by any Loan Party (or any of its officers) in connection
with any Loan Document shall prove to have been incorrect in any material
respect when made; or
(i) Section 8.06 is amended by adding to the end thereof a new
proviso to read as follows:
; provided that upon completion of the Restructuring, the Borrower's
assignment to the New Borrower of the Borrower's rights hereunder, and
the New Borrower's assumption thereof, shall not require the prior
written consent of the Lenders, and after such assignment and assumption
is effective (i) this Agreement shall be binding on and inure to the
benefit of the New Borrower and (ii) the Newspaper Subsidiary shall be
released from its rights and obligations under this Agreement and the
other Loan Documents other than the Subsidiary Guaranty.
(j) Section 8.08 is amended by adding to the end thereof a new
sentence to read as follows:
Notwithstanding anything herein to the contrary, each Loan Party, the
Agent, each Lender and Citigroup Global Markets Inc. (and each employee,
representative or other agent of each of the foregoing parties) may
disclose to any and all Persons, without limitation of any kind, the U.S.
tax treatment and tax structure of the transactions contemplated hereby
and all materials of any kind (including opinions or other tax analyses)
that are provided to any of the foregoing parties relating to such U.S.
tax treatment and tax structure, except that the tax treatment and tax
structure shall not include the identity of any existing or future party
(or any Affiliate of such party) to this Agreement.
(k) A new Section 8.13 is added to read as follows:
SECTION 8.13. Amendments to the Subsidiary Guaranty. The Agent
shall not consent to any amendment or waiver of any provision of the
Subsidiary Guaranty, nor consent to any departure by the Newspaper
Subsidiary therefrom, without the prior consent of the Required
Lenders, and then such consent shall be effective only in the
specific instance and for the specific purpose for which given;
provided, however, that, without the prior consent of all the
Lenders, the Agent shall not consent to any amendment or waiver of
the provisions of Section 1 of the Subsidiary Guaranty which would
reduce or limit the scope of the obligations under or in respect of
the Credit Agreement which are being guaranteed by the Newspaper
Subsidiary under the Subsidiary Guaranty. This Section 8.13 may not
be amended unless such amendment is in writing and is signed by all
the Lenders.
(l) Exhibit E is renamed "Exhibit E-1" and new Exhibits E-2, E-3, F
and G are added in the forms attached as Exhibits ▇-▇, ▇-▇, F and G to
this Amendment.
SECTION 3. Conditions of Effectiveness. This Amendment shall become
effective as of the date first above written when, and only when, on or before
September 5, 2003,
the Agent shall have received counterparts of this Amendment executed by the
Borrower and the Required Lenders or, as to any of the Lenders, advice
satisfactory to the Agent that such Lender has executed this Amendment. The
effectiveness of this Amendment is conditioned upon the accuracy of the
factual matters described herein. This Amendment is subject to the provisions
of Section 8.01 of the Credit Agreement.
SECTION 4. 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 jurisdiction indicated in the
recital of parties to this Amendment.
(b) The execution, delivery and performance by the Borrower of this
Amendment and the Credit Agreement, as amended hereby, are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Borrower's charter or
by-laws or (ii) law or any contractual restriction binding on or
affecting the Borrower.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any
other third party is required for the due execution, delivery or
performance by the Borrower of this Amendment or the Credit Agreement, as
amended hereby.
(d) This Amendment has been duly executed and delivered by the
Borrower. This Amendment and the Credit Agreement, as amended hereby, are
legal, valid and binding obligations of the Borrower, enforceable against
the Borrower in accordance with their respective terms.
(e) There is no pending or threatened action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its
Subsidiaries before any court, governmental agency or arbitrator that
purports to affect the legality, validity or enforceability of this
Amendment or the Credit Agreement.
(f) No Default has occurred and is continuing.
SECTION 5. Reference to and Effect on the Credit Agreement and the
Notes. (a) On and after the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of
like import referring to the Credit Agreement, and each reference in the Notes
to "the Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement, as amended by this Amendment.
(b) The Credit Agreement and the Notes, as specifically amended by
this Amendment, are and shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender or the Agent under the Credit Agreement,
nor constitute a waiver of any provision of the Credit Agreement.
SECTION 6. Costs and Expenses. The Borrower agrees to pay on demand
all costs and expenses of the Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder
(including, without limitation, the reasonable fees and expenses of counsel
for the Agent) in accordance with the terms of Section 8.04(a) of the Credit
Agreement.
SECTION 7. Execution in Counterparts. This Amendment 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 but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be deemed equivalent to delivery of a manually
executed counterpart of this Amendment.
SECTION 8. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE WASHINGTON POST COMPANY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Treasurer
CITIBANK, N.A.
as Agent and as a Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Title: Director
WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇▇ ▇. Angel
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Title: Senior Vice President
SUNTRUST BANK
By /s/ ▇▇▇ ▇▇▇▇
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Title: Vice President
BANK ONE, NA
By /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Director
JPMORGAN CHASE BANK
By /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇
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Title: Vice President/Team Leader
THE BANK OF NEW YORK
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Title: Senior Vice President
▇▇▇▇▇ BANK N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Title: Vice President
THE NORTHERN TRUST COMPANY
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Title: Officer
EXHIBIT E-2 - FORM OF
OPINION OF COUNSEL
FOR THE NEW BORROWER
[Date]
To each of the Lenders parties
to the 5-Year Credit Agreement dated
as of August 14, 2002 among
The Washington Post Company,
presently known as WP Company LLC,
said Lenders, Citibank, N.A., as
Agent for said Lenders
THE WASHINGTON POST COMPANY (FORMERLY KNOWN AS TWPC, INC.)
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 5.01(j)(v) of
the 5-Year Credit Agreement, dated as of August 14, 2002 (as amended to date,
the "Credit Agreement"), among The Washington Post Company, presently known as
WP Company LLC (the "Initial Borrower"), the Lenders parties thereto,
Citibank, N.A., as Agent for said Lenders. Terms defined in the Credit
Agreement are used herein as therein defined.
I am the General Counsel of the New Borrower and as such I am
familiar with the Credit Agreement and the corporate proceedings taken by the
New Borrower to authorize the assumption by the New Borrower of the rights and
obligations of the Initial Borrower under the Credit Agreement.
For purposes of this opinion, I have examined:
(1) The Credit Agreement.
(2) The documents furnished by the New Borrower pursuant to Section
5.01(j) of the Credit Agreement, including the New Borrower
Assignment.
(3) The Certificate of Incorporation of the New Borrower and all
amendments thereto (the "Charter").
(4) The by-laws of the New Borrower and all amendments thereto (the
"By-laws").
(5) A certificate of the Secretary of State of Delaware, dated
________ __, 2003, attesting to the continued corporate existence and
good standing of the New Borrower in that State.
In addition, I have examined the originals, or copies certified to
my satisfaction, of such other corporate records of the New Borrower,
certificates of public officials and of officers of the New 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 New 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 and the
Agent.
My opinions expressed below are limited to the law of the State of
New York, the General Corporation Law of the State of Delaware and the Federal
law of the United States of America.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the following opinion:
1. The New Borrower is a corporation validly existing and in good
standing under the laws of the State of Delaware.
2. The execution and delivery by the New Borrower of the New Borrower
Assignment, and the performance by the New Borrower of its
obligations as the "Borrower" under the Credit Agreement and the
Notes, and the consummation of the transactions contemplated thereby,
are within the New Borrower's corporate powers, and have been duly
authorized by all necessary corporate action, and do not contravene
(i) the Charter or the By-laws or (ii) any law, rule or regulation
applicable to the New 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 New Borrower or its assets, in each case that affects or
purports to affect the New Borrower's right to borrow money or the
New Borrower's obligations as the "Borrower" under the Credit
Agreement or Notes. The New Borrower Assignment delivered on the date
hereof has been duly executed and delivered on behalf of the New
Borrower.
3. No authorization, approval or other action by, and no notice to or
filing with, any United States Federal, New York or, to the extent
required under the General Corporation Law of the State of Delaware,
Delaware governmental authority or regulatory body is required for
the due execution, delivery and performance by the New Borrower of
the New Borrower Assignment and the performance by the New Borrower
of the Credit Agreement and the Notes.
4. After the execution and delivery of the New Borrower Assignment,
the Credit Agreement is, and upon the consummation of any Borrowings,
the Notes will be, legal, valid and binding obligations of the New
Borrower enforceable against the New 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
New 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 New
Borrower Assignment, 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 New 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 the effect of the law of any
jurisdiction other than the State of New York wherein any Lender may be
located or wherein enforcement of the Credit Agreement or the Notes may
be sought that limits the rates of interest legally chargeable or
collectible.
Very truly yours,
EXHIBIT E-3 - FORM OF
OPINION OF COUNSEL
FOR THE NEWSPAPER SUBSIDIARY
[Date]
To each of the Lenders parties to the 5-Year Credit Agreement dated as of
August 14, 2002 among The Washington Post Company, presently known as WP
Company, LLC, said Lenders, Citibank, N.A., as Agent for said Lenders
WP COMPANY LLC (FORMERLY KNOWN AS THE WASHINGTON POST COMPANY)
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 5.01(j)(v) of
the 5-Year Credit Agreement, dated as of August 14, 2002 (as amended to date,
the "Credit Agreement"), among The Washington Post Company (the "Initial
Borrower"), presently known as WP Company LLC, the Lenders parties thereto,
Citibank, N.A., as Agent for said Lenders. Terms defined in the Credit
Agreement are used herein as therein defined.
I am the General Counsel of The Washington Post Company (formerly
known and TWPC, Inc.), the sole stockholder of the Newspaper Subsidiary, and
as such I am familiar with the Credit Agreement and the proceedings taken by
the Newspaper Subsidiary to authorize the execution and delivery of the
Subsidiary Guaranty.
For purposes of this opinion, I have examined:
(1) The Credit Agreement.
(2) The documents furnished by the Newspaper Subsidiary pursuant to
Section 5.01(j) of the Credit Agreement, including the Subsidiary
Guaranty.
(3) The Certificate of Formation and Certificate of Conversion of the
Newspaper Subsidiary and all amendments thereto (the "Certificates").
(4) The limited liability company agreement of the Newspaper
Subsidiary and all amendments thereto (the "LLC Agreement").
(5) A certificate of the Secretary of State of Delaware, dated
________ __, 2003, attesting to the continued existence and good
standing of the Newspaper Subsidiary in that State.
In addition, I have examined the originals, or copies certified to
my satisfaction, of such other records of the Newspaper Subsidiary,
certificates of public officials and of officers
of the Newspaper Subsidiary, 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 Newspaper
Subsidiary 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 and the Agent.
My opinions expressed below are limited to the law of the State of
New York, the Limited Liability Company Act of the State of Delaware and the
Federal law of the United States of America.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the following opinion:
1. The Newspaper Subsidiary is a limited liability company validly
existing and in good standing under the laws of the State of
Delaware.
2. The execution, delivery and performance by the Newspaper
Subsidiary of the Subsidiary Guaranty are within the Newspaper
Subsidiary's powers, and have been duly authorized by all necessary
action, and do not contravene (i) the Certificates or LLC Agreement
or (ii) any law, rule or regulation applicable to the Newspaper
Subsidiary (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 Newspaper
Subsidiary or its assets, in each case that affects or purports to
affect the Newspaper Subsidiary's obligations under the Subsidiary
Guaranty. The Subsidiary Guaranty delivered on the date hereof has
been duly executed and delivered on behalf of the Newspaper
Subsidiary.
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 Limited Liability Company Act 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 Subsidiary Guaranty.
4. The Subsidiary Guaranty is a legal, valid and binding obligation
of the Newspaper Subsidiary enforceable against the Newspaper
Subsidiary in accordance with its terms.
5. To the best of my knowledge after appropriate inquiry, there are
no pending or overtly threatened actions or proceedings against the
Newspaper Subsidiary before any court, governmental agency or
arbitrator that purport to affect the legality, validity, binding
effect or enforceability of the Subsidiary Guaranty.
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 Subsidiary Guaranty
provide for indemnification, the enforceability thereof may be limited by
public policy considerations.
(d) I express no opinion as to 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 Subsidiary Guaranty may be sought
that limits the rates of interest legally chargeable or collectible.
Very truly yours,
EXHIBIT G - FORM OF
NEW BORROWER ASSIGNMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT (this
"Agreement"), dated as of /o/, 2003, between WP
COMPANY LLC, a Delaware limited liability company
(the "Newspaper Subsidiary"), and THE WASHINGTON
POST COMPANY (formerly known as TWPC, Inc.), a
Delaware corporation (the "New Borrower").
WHEREAS, reference is made to the 5-Year Credit Agreement (as
amended to date, the "Credit Agreement") dated as of August 14, 2002, among
the Newspaper Subsidiary (then known as The Washington Post Company), as
Borrower; Bank One, NA, The Bank of New York, Citibank, N.A., JPMorgan Chase
Bank, ▇▇▇▇▇ Bank NA, SunTrust Bank, Wachovia Bank, National Association and
The Northern Trust Company;
WHEREAS, as contemplated by Section 5.01(j) of the Credit Agreement,
the Newspaper Subsidiary wishes to assign to the New Borrower, and the New
Borrower wishes to assume from the Newspaper Subsidiary, all of the Newspaper
Subsidiary's rights and obligations under the Credit Agreement;
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the parties hereto have caused to be delivered to the Agent the
documents referred to in Section 5.01(j) of the Credit Agreement.
NOW, THEREFORE, for consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and as contemplated by the Credit Agreement, the parties agree
as follows:
SECTION 1. Defined Terms. All capitalized terms used and not
otherwise defined herein shall have the meanings ascribed to them in the
Credit Agreement.
SECTION 2. Assignment and Assumption. The Newspaper Subsidiary
hereby assigns to the New Borrower, and the New Borrower hereby assumes from
the Newspaper Subsidiary, effective as of the date of this Agreement, all of
the Newspaper Subsidiary's right, title and interest in and to, and all of its
duties, obligations and liabilities under, the Credit Agreement. From and
after the date of this Agreement, (i) the Credit Agreement shall be binding on
and inure to the benefit of the New Borrower as if the New Borrower were the
Borrower under the Credit Agreement and (ii) the Newspaper Subsidiary shall be
released from its right, title and interest in and to, and all of its duties,
obligations and liabilities under, the Credit Agreement.
SECTION 3. Performance. The New Borrower hereby agrees to faithfully
perform all of the duties imposed upon the Borrower under the Credit Agreement
and to comply with all of the covenants therein contained.
SECTION 4. Subsidiary Guaranty. Nothing in this Agreement shall be
construed to release the Newspaper Subsidiary from its duties, obligations and
liabilities under the Subsidiary Guaranty.
SECTION 5. Counterparts. This Agreement may be executed in one or
more counterparts by facsimile signature, each of which shall be deemed an
original and all of which shall, taken together, be considered one and the
same agreement.
SECTION 6. New York Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without
regard to its principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
WP COMPANY LLC,
by:
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Name:
Title:
THE WASHINGTON POST COMPANY (formerly known as
TWPC, Inc.),
by:
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Name:
Title: