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EXHIBIT 4.4
U.S. $250,000,000
364-DAY CREDIT AGREEMENT
Dated as of September 20, 2000
Among
THE WASHINGTON POST COMPANY
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITIBANK, N.A.
as Administrative Agent
and
SUNTRUST BANK
as Syndication Agent
and
THE CHASE MANHATTAN BANK
as Documentation Agent
--------------------------------------
SALOMON SMITH BARNEY INC.
Lead Arranger and Book Manager
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms......................................................................1
SECTION 1.02. Computation of Time Periods...............................................................13
SECTION 1.03. Accounting Terms..........................................................................13
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances.............................................................13
SECTION 2.02. Making the Revolving Credit Advances......................................................14
SECTION 2.03. The Competitive Bid Advances..............................................................15
SECTION 2.04. Fees......................................................................................19
SECTION 2.05. Termination, Reduction or Increase of the Commitments.....................................19
SECTION 2.06. Repayment of Revolving Credit Advances; Term Loan Election................................21
SECTION 2.07. Interest on Revolving Credit Advances.....................................................22
SECTION 2.08. Interest Rate Determination...............................................................22
SECTION 2.09. Optional Conversion of Revolving Credit Advances..........................................23
SECTION 2.10. Optional Prepayments of Revolving Credit Advances.........................................24
SECTION 2.11. Increased Costs...........................................................................24
SECTION 2.12. Illegality................................................................................25
SECTION 2.13. Payments and Computations.................................................................26
SECTION 2.14. Taxes.....................................................................................27
SECTION 2.15. Sharing of Payments, Etc..................................................................29
SECTION 2.16. Use of Proceeds...........................................................................29
SECTION 2.17. Extension of Termination Date.............................................................29
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03...........................32
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing, Increase Date and Extension Date.32
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing....................................33
SECTION 3.04. Determinations Under Section 3.01.........................................................33
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower............................................34
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants.....................................................................35
SECTION 5.02. Negative Covenants........................................................................37
SECTION 5.03. Financial Covenant........................................................................39
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.........................................................................39
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action..................................................................41
SECTION 7.02. Agent's Reliance, Etc.....................................................................41
SECTION 7.03. Citibank and Affiliates...................................................................42
SECTION 7.04. Lender Credit Decision....................................................................42
SECTION 7.05. Indemnification...........................................................................42
SECTION 7.06. Successor Agent...........................................................................42
SECTION 7.07. Documentation Agent and Syndication Agent.................................................43
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc...........................................................................43
SECTION 8.02. Notices, Etc..............................................................................43
SECTION 8.03. No Waiver; Remedies.......................................................................44
SECTION 8.04. Costs and Expenses........................................................................44
SECTION 8.05. Right of Set-off..........................................................................45
SECTION 8.06. Binding Effect............................................................................45
SECTION 8.07. Assignments and Participations............................................................45
SECTION 8.08. Confidentiality...........................................................................48
SECTION 8.09. Governing Law.............................................................................48
SECTION 8.10. Execution in Counterparts.................................................................48
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SECTION 8.11. Jurisdiction, Etc.........................................................................49
SECTION 8.12. Waiver of Jury Trial......................................................................49
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Schedules
Schedule I - List of Applicable Lending Offices
Schedule 5.02(a) - Existing Liens
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Exhibits
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Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Assumption Agreement
Exhibit E - Form of Opinion of Counsel for the Borrower
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364-DAY CREDIT AGREEMENT
Dated as of September 20, 2000
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), SunTrust Bank ("SunTrust"), as syndication agent, and The
Chase Manhattan Bank ("Chase"), as documentation agent, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"Advance" means a Revolving Credit Advance or a Competitive Bid
Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or executive officer of such
Person. For purposes of this definition, the term "control" (including
the terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 10% or more of the Voting Stock of such Person or to direct or cause
the direction of the management and policies of such Person, whether
through the ownership of Voting Stock, by contract or otherwise.
"Agent's Account" means the account of the Agent maintained by the
Agent at Citibank with its office at 399 Park Avenue, New York, New York
10043, Account No. 36852248, Attention: Bank Loans Syndications.
"Applicable Lending Office" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate Advance
and such Lender's Eurodollar Lending Office in the case of a Eurodollar
Rate Advance and, in the case of a Competitive Bid Advance, the office of
such Lender notified by such Lender to the Agent as its Applicable
Lending Office with respect to such Competitive Bid Advance.
"Applicable Margin" means as of any date, a percentage per annum
determined by reference to the Performance Level in effect on such date
as set forth below:
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=========================== ============================ ================================
Applicable Margin for Base Applicable Margin for
Performance Level Rate Advances Eurodollar Rate Advances
=========================== ============================ ================================
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I 0% 0.12%
--------------------------- ---------------------------- --------------------------------
II 0% 0.11%
--------------------------- ---------------------------- --------------------------------
III 0% 0.175%
=========================== ============================ ================================
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"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:
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================================ =============================
Performance Level Applicable Percentage
================================ =============================
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I 0.03%
-------------------------------- -----------------------------
II 0.04%
-------------------------------- -----------------------------
III 0.05%
================================ =============================
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"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, accepted and approved
by the Agent and approved by the Borrower, in substantially the form of
Exhibit C hereto.
"Assuming Lender" means an Eligible Assignee not previously a
Lender that becomes a Lender hereunder pursuant to either Section 2.05(b)
or Section 2.17.
"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 either Section 2.05(b) or Section 2.17, in
each case agreeing to be bound by all obligations of a Lender hereunder.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to
the higher of:
(a) the rate of interest announced publicly by Citibank
in New York, New York, from time to time, as Citibank's base rate;
and
(b) 1/2 of one percent per annum above the Federal Funds
Rate.
"Base Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing or a Competitive
Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates
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to any Eurodollar Rate Advances, on which dealings are carried on in the
London interbank market.
"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, the amount 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 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 or such Lender's knowledge, acting in
violation of a confidentiality agreement with or for the benefit of the
Borrower.
"Consenting Lender" has the meaning specified in Section 2.17(b).
"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 (a) whose election
or nomination was approved by a majority of the then Continuing Directors
or (b) who was nominated by management at a time when Continuing
Directors constituted a majority of the board of directors of the
Borrower.
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"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving Credit
Advances of the other Type pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables not overdue by more than 120 days incurred in
the ordinary course of such Person's business), (c) all obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all obligations of such Person created or arising under
any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all obligations of
such Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (f) all obligations,
contingent or otherwise, of such Person in respect of acceptances,
letters of credit or similar extensions of credit, (g) all Debt of others
referred to in clauses (a) through (f) above or clause (h) below
guaranteed directly or indirectly in any manner by such Person, or in
effect guaranteed directly or indirectly by such Person through an
agreement (1) to pay or purchase such Debt or to advance or supply funds
for the payment or purchase of such Debt, (2) to purchase, sell or lease
(as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such
Debt or to assure the holder of such Debt against loss, (3) to supply
funds to or in any other manner invest in the debtor (including any
agreement to pay for property or services irrespective of whether such
property is received or such services are rendered) or (4) otherwise to
assure a creditor against loss, and (h) all Debt referred to in clauses
(a) through (g) above secured by (or for which the holder of such Debt
has an existing right, contingent or otherwise, to be secured by) any
Lien on property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or
become liable for the payment of such Debt.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Domestic Lending Office" means, with respect to any Initial
Lender, the office of such Lender specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto and, with respect to any
other Lender, the office of such Lender specified as its "Domestic
Lending Office" in the Assumption Agreement or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office of
such Lender as such Lender may from time to time specify to the Borrower
and the Agent.
"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 Moody's.
"Effective Date" has the meaning specified in Section 3.01.
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"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) 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; (d) 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; (e) 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
(e); (f) the central bank of any country that is a member of the
Organization for Economic Cooperation and Development; and (g) 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.
"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.
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"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are
met with a contributing sponsor, as defined in Section 4001(a)(13) of
ERISA, of a Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to a Plan; (c) the
provision by the administrator of any Plan of a notice of intent to
terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including
any such notice with respect to a plan amendment referred to in Section
4041(e) of ERISA); (d) the cessation of operations at a facility of the
Borrower or any ERISA Affiliate in the circumstances described in Section
4062(e) of ERISA; (e) the withdrawal by the Borrower or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for which it
was a substantial employer, as defined in Section 4001(a)(2) of ERISA;
(f) the conditions for the imposition of a lien under Section 302(f) of
ERISA shall have been met with respect to any Plan; (g) the adoption of
an amendment to a Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term
in Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Eurocurrency Reserve Requirements" means the aggregate of the
maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by the Board
of Governors of the Federal Reserve System and any other banking
authority to which any Lender is subject and applicable to Eurocurrency
Liabilities, or any similar category of assets or liabilities relating to
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
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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.
"Extension Date" has the meaning specified in Section 2.17(b).
"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).
"GAAP" has the meaning specified in Section 1.03.
"Graham Interests" shall mean Katharine Graham 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).
"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
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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 or, if the Revolving Credit Advances have been converted
to a term loan pursuant to Section 2.06 prior to such selection,
that ends after the Maturity Date;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of the
same Competitive Bid Borrowing shall be of the same duration;
(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 either Section 2.05(b) or Section
2.17 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,
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England by prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to the amount that would be the
Reference Banks' respective ratable shares of such Borrowing if such
Borrowing were to be a Revolving Credit Borrowing to be outstanding
during such Interest Period and for a period equal to such Interest
Period. The LIBO Rate for any Interest Period for each LIBO Rate Advance
comprising part of the same Competitive Bid Borrowing shall be determined
by the Agent on the basis of applicable rates furnished to and received
by the Agent from the Reference Banks two Business Days before the first
day of such Interest Period, subject, however, to the provisions of
Section 2.08.
"LIBO Rate Advances" has the meaning specified in Section
2.03(a)(i).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien 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.
"Maturity Date" means the earlier of (a) the first anniversary of
the Termination Date and (b) the date of termination in whole of the
aggregate Commitments pursuant to Section 2.05 or 6.01.
"Moody's" means Moody's 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
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Affiliate could have liability under Section 4064 or 4069 of ERISA in the
event such plan has been or were to be terminated.
"Non-Consenting Lender" has the meaning specified in Section
2.17(b).
"Non-Recourse Debt" shall mean Debt of the Borrower or its
Subsidiaries incurred (a) as to which neither the Borrower nor any of its
Subsidiaries (i) provides credit support (including any undertaking,
agreement or instrument which would constitute Debt) or has given or made
other written assurances regarding repayment or the maintenance of
capital or liquidity except such assurances as may be approved by the
Required Lenders (such approval not to be unreasonably withheld or
delayed), (ii) is directly or indirectly liable or (iii) constitutes the
lender and (b) the obligees of which will have recourse solely to certain
identified assets (the loss of which would not reasonably be expected to
have a Material Adverse Effect) for repayment of the principal of and
interest on such Debt and any fees, indemnities, expenses, reimbursements
or other amounts of whatever nature accrued or payable in connection with
such Debt.
"Note" means a Revolving Credit Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning specified in
Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning specified
in Section 2.02(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Performance Level" means, as of any date of the determination,
the level set forth below as then in effect, as determined in accordance
with the following provisions of this definition:
Level I: Public Debt Rating of not lower than AA+ by S&P or
not lower than Aa1 by Moody's.
Level II: Public Debt Rating of lower than Level I but not
lower than AA- by S&P or Aa3 by Moody's.
Level III: Public Debt Rating of A+ by S&P or A1 by Moody's or
lower.
For purposes of the foregoing, (a) if only one of S&P and Moody's shall
have in effect a Public Debt Rating, the Performance Level shall be
determined by reference to the available rating and (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.
"Permitted Liens" means any of the following:
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(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.
"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, SunTrust and Chase.
"Register" has the meaning specified in Section 8.07(d).
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"Required Lenders" means at any time Lenders having at least a
majority in interest of the Commitments or, if all of the Commitments
have been terminated, Lenders owed at least a majority in interest of the
then aggregate unpaid principal amount of the Advances.
"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 The
McGraw-Hill Companies, Inc.
"Shareholders' Equity" means "shareholders' equity" as such term
is construed in accordance with GAAP and as reported in the Borrower's
reports and registration statements filed with the Securities and
Exchange Commission or any national securities exchange.
"Significant Subsidiary" shall mean any Subsidiary that would be a
"significant subsidiary" within the meaning of Rule 1-02 of the SEC's
Regulation S-X.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and no Person other than the Borrower and
the ERISA Affiliates or (b) was so maintained and in respect of which the
Borrower or any ERISA Affiliate could have liability under Section 4069
of ERISA in the event such plan has been or were to be terminated.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or in
which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall or
might have voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such limited liability company,
partnership or joint venture or (c) the beneficial interest in such trust
or estate is at the time directly or indirectly owned or controlled by
such Person, by such Person and one or more of its other Subsidiaries or
by one or more of such Person's other Subsidiaries.
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"Term Loan Conversion Date" means the Termination Date on which
all Revolving Credit Advances outstanding on such date are converted into
a term loan pursuant to Section 2.06.
"Term Loan Election" has the meaning specified in Section 2.06.
"Termination Date" means the earlier of (a) September 19, 2001,
subject to the extension thereof pursuant to Section 2.17 and (b) the
date of termination in whole of the Commitments pursuant to Section 2.05
or 6.01; provided, however, that the Termination Date of any Lender that
is a Non-Consenting Lender to any requested extension pursuant to Section
2.17 shall be the Termination Date in effect immediately prior to the
applicable Extension Date for all purposes of this Agreement.
"Unused Commitment" means, with respect to any Lender at any time,
(a) such Lender's Commitment at such time minus (b) the sum of (i) the
aggregate principal amount of all Revolving Credit Advances made by such
Lender and outstanding at such time, plus (ii) such Lender's Pro Rata
Share of the aggregate principal amount of the Competitive Bid Advances
then outstanding.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of not less than a majority of the directors (or persons
performing similar functions) of such Person, even if the right so to
vote has been suspended by the happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All terms of an accounting or
financial nature shall be construed in accordance with generally accepted
accounting principles ("GAAP"), as in effect from time to time; provided,
however, that if the Borrower notifies the Agent that the Borrower wishes to
amend any covenant in Article V or any related definition to eliminate the
effect of any change in GAAP occurring after the date of this Agreement on the
operation of such covenant, or if the Agent notifies the Borrower that the
Required Lenders wish to amend Article V or any related definition for such
purpose, then the Borrower's compliance with such covenant shall be determined
on the basis of GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Borrower and the Required Lenders.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to the Borrower from time to time on any Business Day during the
period from the Effective Date until
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<PAGE> 19
the Termination Date in an amount for each such Advance not to exceed such
Lender's Unused Commitment. Each Revolving Credit Borrowing shall be in an
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof (or, if less, an aggregate amount equal to the amount by which the
aggregate amount of a proposed Competitive Bid Borrowing requested by the
Borrower exceeds the aggregate amount of Competitive Bid Advances offered to be
made by the Lenders and accepted by the Borrower in respect of such Competitive
Bid Borrowing, if such Competitive Bid Borrowing is made on the same date as
such Revolving Credit Borrowing) and shall consist of Revolving Credit Advances
of the same Type made on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's Unused Commitment in
effect from time to time, the Borrower may borrow under this Section 2.01,
prepay pursuant to Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Revolving Credit Borrowing shall be made on notice, given not later than 11:00
A.M. (New York City time) on the third Business Day prior to the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurodollar Rate Advances, or the date of the proposed Revolving
Credit Borrowing in the case of a Revolving Credit Borrowing consisting of Base
Rate Advances, by the Borrower to the Agent, which shall give to each Lender
prompt notice thereof by telecopier or telex. Each such notice of a Revolving
Credit Borrowing (a "Notice of Revolving Credit Borrowing") shall be by
telephone, confirmed at once in writing, or telecopier or telex in substantially
the form of Exhibit B-1 hereto, specifying therein the requested (i) date of
such Revolving Credit Borrowing, (ii) Type of Advances comprising such Revolving
Credit Borrowing, (iii) aggregate amount of such Revolving Credit Borrowing, and
(iv) in the case of a Revolving Credit Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Revolving Credit Advance. Each
Lender shall, before 1:00 P.M. (New York City time) on the date of such
Revolving Credit Borrowing, make available for the account of its Applicable
Lending Office to the Agent at the Agent's Account, in same day funds, such
Lender's ratable portion of such Revolving Credit Borrowing. After the Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Agent will make such funds available to the Borrower
at the Agent's address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Revolving Credit Borrowing if the aggregate amount of such Revolving Credit
Borrowing is less than $10,000,000 or if the obligation of the Lenders to make
Eurodollar Rate Advances shall then be suspended pursuant to Section 2.08 or
2.12 and (ii) the Eurodollar Rate Advances may not be outstanding as part of
more than fifteen separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on the Borrower. In the case of any Revolving Credit
Borrowing that the related Notice of Revolving Credit Borrowing specifies is to
be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each
Lender against any loss, cost or expense incurred by such Lender as a result of
any failure to fulfill on or before the date specified in such Notice of
Revolving Credit Borrowing for such Revolving Credit Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds
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acquired by such Lender to fund the Revolving Credit Advance to be made by such
Lender as part of such Revolving Credit Borrowing when such Revolving Credit
Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender
prior to the date of any Revolving Credit Borrowing that such Lender will not
make available to the Agent such Lender's ratable portion of such Revolving
Credit Borrowing, the Agent may assume that such Lender has made such portion
available to the Agent on the date of such Revolving Credit Borrowing in
accordance with subsection (a) of this Section 2.02 and the Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Agent, such Lender and the Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid to the
Agent, at (i) in the case of the Borrower, the interest rate applicable at the
time to the Advances comprising such Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
Revolving Credit Advance as part of such Revolving Credit Borrowing for purposes
of this Agreement.
(e) The failure of any Lender to make the Revolving Credit
Advance to be made by it as part of any Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Revolving Credit Advance
on the date of such Revolving Credit Borrowing but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that the Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below; provided that the amount of each Competitive Bid
Borrowing shall not exceed the aggregate amount of the Unused Commitments of the
Lenders on such Business Day.
(i) The Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Agent, by telecopier or telex, a
notice of a Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in substantially the form of Exhibit B-2 hereto, specifying
therein the requested (u) date of such proposed Competitive Bid
Borrowing, (v) aggregate amount of such proposed Competitive Bid
Borrowing, (w) maturity date for repayment of each 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), (x) in the case of a Competitive Bid Advance consisting of LIBO
Rate Advances, Interest Period thereof, (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
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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.
(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
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(y) accept one or more of the offers made by any Lender
or Lenders pursuant to paragraph (ii) above, in its sole
discretion, by giving notice to the Agent of the amount of each
Competitive Bid Advance (which amount shall be equal to or greater
than the minimum amount, and equal to or less than the maximum
amount, notified to the Borrower by the Agent on behalf of such
Lender for such Competitive Bid Advance pursuant to paragraph (ii)
above) to be made by each Lender as part of such Competitive Bid
Borrowing, and reject any remaining offers made by Lenders
pursuant to paragraph (ii) above by giving the Agent notice to
that effect. The Borrower shall accept the offers made by any
Lender or Lenders to make Competitive Bid Advances in order of the
lowest to the highest rates of interest offered by such Lenders.
If two or more Lenders have offered the same interest rate, the
amount to be borrowed at such interest rate will be allocated
among such Lenders in proportion to the amount that each such
Lender offered at such interest rate.
(iv) If the Borrower notifies the Agent that such Competitive
Bid Borrowing is cancelled pursuant to paragraph (iii)(x) above, the
Agent shall give prompt notice thereof to the Lenders and such
Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y) above, the Agent
shall in turn promptly notify (A) each Lender that has made an offer as
described in paragraph (ii) above, of the date and aggregate amount of
such Competitive Bid Borrowing and whether or not any offer or offers
made by such Lender pursuant to paragraph (ii) above have been accepted
by the Borrower, (B) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, of the amount of each
Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing, and (C) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, upon
receipt, that the Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each Lender
that is to make a Competitive Bid Advance as part of such Competitive Bid
Borrowing shall, before 12:00 noon (New York City time) on the date of
such Competitive Bid Borrowing specified in the notice received from the
Agent pursuant to clause (A) of the preceding sentence or any later time
when such Lender shall have received notice from the Agent pursuant to
clause (C) of the preceding sentence, make available for the account of
its Applicable Lending Office to the Agent at the Agent's Account, in
same day funds, such Lender's portion of such Competitive Bid Borrowing.
Upon fulfillment of the applicable conditions set forth in Article III
and after receipt by the Agent of such funds, the Agent will make such
funds available to the Borrower at the 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
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Competitive Bid Borrowing for such Competitive Bid Borrowing the
applicable conditions set forth in Article III, including, without
limitation, any loss (excluding loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by such Lender to fund the Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid
Borrowing when such Competitive Bid Advance, as a result of such failure,
is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and, following the making of each Competitive Bid Borrowing, the Borrower shall
be in compliance with the limitation set forth in the proviso to the first
sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this Section 2.03,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03, provided that a Competitive Bid Borrowing shall not be made within
one Business Day of the date of any other Competitive Bid Borrowing.
(d) The Borrower shall repay to the Agent for the account of
each Lender that has made a Competitive Bid Advance, on the maturity date of
each Competitive Bid Advance (such maturity date being that specified by the
Borrower for repayment of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and
provided in the Competitive Bid Note evidencing such Competitive Bid Advance),
the then unpaid principal amount of such Competitive Bid Advance. The Borrower
shall have no right to prepay any principal amount of any Competitive Bid
Advance unless, and then only on the terms, specified by the Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above and set forth in the Competitive
Bid Note evidencing such Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid principal
amount of each Competitive Bid Advance from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such Competitive Bid Advance
specified by the Lender making such Competitive Bid Advance in its notice with
respect thereto delivered pursuant to subsection (a)(ii) above, payable on the
interest payment date or dates specified by the Borrower for such Competitive
Bid Advance in the related Notice of Competitive Bid Borrowing delivered
pursuant to subsection (a)(i) above, as provided in the Competitive Bid Note
evidencing such Competitive Bid Advance. The Borrower shall pay interest on the
amount of overdue principal and, to the fullest extent permitted by law,
interest in respect of each Competitive Bid Advance owing to a Lender, payable
in arrears on the date or dates interest is payable thereon, at a rate per annum
equal at all times to 1% per annum above the rate per annum required to be paid
on such Competitive Bid Advance under the terms of the Competitive Bid Note
evidencing such Competitive Bid Advance unless otherwise agreed in such
Competitive Bid Note.
(f) The indebtedness of the Borrower resulting from each
Competitive Bid Advance made to the Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a
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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 September 30, 2000, 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. (i) Optional. 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)(i), may not be reinstated, except as provided in Section 2.05(b) below.
(ii) Mandatory. On the Termination Date, if the Borrower has made
the Term Loan Election in accordance with Section 2.06 prior to such
date, and from time to time thereafter upon each prepayment of the
Revolving Credit Advances, the Commitments of the Lenders shall be
automatically and permanently reduced on a pro rata basis by an amount
equal to the amount by which (A) the aggregate Commitments immediately
prior to such reduction exceed (B) the aggregate unpaid principal amount
of all Revolving Credit Advances outstanding at such time.
(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
$350,000,000, (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
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Assignees as Assuming Lenders and as parties to this Agreement; provided,
however, that it shall be in each Lender's sole discretion whether to increase
its Commitment hereunder in connection with the proposed Commitment Increase;
and provided further that the minimum Commitment of each such Assuming Lender
that becomes a party to this Agreement pursuant to this Section 2.05(b), shall
be at least equal to $10,000,000. If any of the Lenders agree to increase their
respective Commitments by an aggregate amount in excess of the proposed
Commitment Increase, the proposed Commitment Increase shall be allocated among
such Lenders in proportion to their respective Commitments immediately prior to
the Increase Date. If agreement is reached on or prior to the applicable
Commitment Date with any Increasing Lenders and Assuming Lenders as to a
Commitment Increase (which may be less than but not greater than specified in
the applicable notice from the Borrower), such agreement to be evidenced by a
notice in reasonable detail from the Borrower to the Agent on or prior to the
applicable Commitment Date, such Assuming Lenders, if any, shall become Lenders
hereunder as of the applicable Increase Date and the Commitments of such
Increasing Lenders and such Assuming Lenders shall become or be, as the case may
be, as of the Increase Date, the amounts specified in such notice; provided
that:
(x) the Agent shall have received (with copies for each Lender,
including each such Assuming Lender) by no later than 10:00 A.M. (New
York City time) on the applicable Increase Date (1) certified copies of
resolutions of the Board of Directors of the Borrower approving the
Commitment Increase and (2) an opinion of counsel for the Borrower (which
may be in-house counsel), in substantially the form of Exhibit E hereto;
(y) each such Assuming Lender shall have delivered to the
Agent, by no later than 10:00 A.M. (New York City time) on such Increase
Date, an appropriate Assumption Agreement in substantially the form of
Exhibit D hereto, duly executed by such Assuming Lender and the Borrower;
and
(z) each such Increasing Lender shall have delivered to the
Agent by, no later than 10:00 A.M. (New York City time) on such Increase
Date, (A) its existing Revolving Credit Note and (B) confirmation in
writing satisfactory to the Agent as to its increased Commitment.
(ii) In the event that the Agent shall have received notice from
the Borrower as to its agreement to a Commitment Increase on or prior to
the applicable Commitment Date and each of the actions provided for in
clauses (x) through (z) above shall have occurred prior to 10:00 A.M.
(New York City time) on the applicable Increase Date to the satisfaction
of the Agent, the Agent shall notify the Lenders (including any Assuming
Lenders) and the Borrower of the occurrence of such Commitment Increase
by telephone, confirmed at once in writing, telecopier, telex or cable
and in any event no later than 1:00 P.M. (New York City time) on such
Increase Date and shall record in the Register the relevant information
with respect to each Increasing Lender and Assuming Lender. Each
Increasing Lender and each Assuming Lender shall, before 2:00 P.M. (New
York City time) on the applicable Increase Date, make available for the
account of its Applicable Lending Office to the Agent at the Agent's
Account, in same day funds, in the case of such Assuming Lender, an
amount equal to such Assuming Lender's ratable portion of the Revolving
Credit Borrowings then outstanding (calculated based on its Commitment
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<PAGE> 26
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.
SECTION 2.06. Repayment of Revolving Credit Advances; Term Loan
Election. The Borrower shall, subject to the next succeeding sentence, 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.
The Borrower may, upon not less than 15 days' notice to the Agent, elect (the
"Term Loan Election") to convert a portion or all of the Revolving Credit
Advances outstanding on the Termination Date in effect at such time into a term
loan which the Borrower shall repay in full ratably to the Lenders on the
Maturity Date; provided that (i) the Term Loan Election may not be exercised if
a Default has occurred and is continuing on the date of notice of the Term Loan
Election or on the date on which the Term Loan Election is to be effected and
(ii) the aggregate principal amount of any portion of the outstanding Revolving
Credit Advances not converted pursuant to the Term Loan Election shall be repaid
on the Termination Date. All Revolving Credit Advances converted into a term
loan pursuant to this
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Section 2.06 shall continue to constitute Revolving Credit Advances except that
the Borrower may not reborrow pursuant to Section 2.01 after all or any portion
of such Revolving Credit Advances have been prepaid pursuant to Section 2.10.
SECTION 2.07. Interest on Revolving Credit Advances. (a) Scheduled
Interest. The Borrower shall pay interest on the unpaid principal amount of each
Revolving Credit Advance owing to each Lender from the date of such Revolving
Credit Advance until such principal amount shall be paid in full, at the
following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
Credit Advance is a Base Rate Advance a rate per annum equal at all times
to the sum of (x) the Base Rate in effect from time to time plus (y) the
Applicable Margin in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving Credit
Advance to the sum of (x) the Eurodollar Rate for such Interest Period
for such Revolving Credit Advance plus (y) the Applicable Margin in
effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more than
three months, on each day that occurs during such Interest Period every
three months from the first day of such Interest Period and on the date
such Eurodollar Rate Advance shall be Converted or paid in full.
(b) Default Interest. The Borrower shall pay interest on (i)
overdue principal of each Revolving Credit Advance owing to each Lender, payable
in arrears on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate
per annum equal at all times to 1% per annum above the rate per annum required
to be paid on such Revolving Credit Advance pursuant to clause (a)(i) or (a)(ii)
above and (ii) to the fullest extent permitted by law, the amount of any overdue
interest, fee or other amount payable hereunder, from the date such amount shall
be due until such amount shall be paid in full, payable in arrears on the date
such amount shall be paid in full and on demand, at a rate per annum equal at
all times to 1% per annum above the rate per annum required to be paid on Base
Rate Advances pursuant to clause (a)(i) above.
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).
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(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Agent that the Eurodollar Rate for any Interest
Period for such Advances will not adequately reflect the cost to such Required
Lenders of making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period, the Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to
make, or to Convert Revolving Credit Advances into, Eurodollar Rate Advances
shall be suspended until the Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify the Borrower and the Lenders and the Borrower
shall be deemed to have selected an Interest Period of one month.
(d) Upon the occurrence and during the continuance of any Event
of Default under Section 6.01(a), (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended.
(e) If fewer than two Reference Banks furnish timely
information to the Agent for determining the Eurodollar Rate or LIBO Rate for
any Eurodollar Rate Advances or LIBO Rate Advances, as the case may be, the
Eurodollar Rate or the LIBO Rate for such Eurodollar Rate Advance or LIBO Rate
Advance, as the case may be, shall be an interest rate per annum determined by
the Agent to be the offered rate per annum at which deposits in U.S. dollars
appears on the Dow Jones Markets Page 3750 (or any successor page) as of 11:00
A.M. (London time), or in the event such offered rate is not available from the
Dow Jones Markets Page 3750,
(i) the Agent shall forthwith notify the Borrower and the
Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances or LIBO Rate Advances, as the case may be,
(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
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<PAGE> 29
and subject to the provisions of Sections 2.08 and 2.12, Convert all Revolving
Credit Advances of one Type comprising the same Borrowing into Revolving Credit
Advances of the other Type; provided, however, that any Conversion of Base Rate
Advances into Eurodollar Rate Advances shall be in an amount not less than the
minimum amount specified in Section 2.02(b) and no Conversion of any Revolving
Credit Advances shall result in more separate Revolving Credit Borrowings than
permitted under Section 2.02(b). Each such notice of a Conversion shall, within
the restrictions specified above, specify (i) the date of such Conversion, (ii)
the Revolving Credit Advances to be Converted, and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the initial Interest Period for
each such Advance. Each notice of Conversion shall be irrevocable and binding on
the Borrower.
SECTION 2.10. Optional Prepayments of Revolving Credit Advances.
The Borrower may, in the case of Eurodollar Rate Advances, upon at least two
Business Days' notice to the Agent, and in the case of Base Rate Advances, upon
notice to the Agent not later than 11:00 A.M. on the date of such proposed
prepayment, stating in each case the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Borrower shall, prepay
the outstanding principal amount of the Revolving Credit Advances comprising
part of the same Revolving Credit Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that (x) each partial prepayment shall be in
an aggregate principal amount of $5,000,000 for any Base Rate Advance or
$10,000,000 for any Eurodollar Rate Advance or, in each case, an integral
multiple of $1,000,000 in excess thereof and (y) in the event of any such
prepayment of a Eurodollar Rate Advance, the Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 8.04(c).
SECTION 2.11. Increased Costs. (a) If, after the date hereof, due
to either (i) the introduction of or any change in or in the interpretation of
any law or regulation or (ii) the compliance with any guideline or request from
any central bank or other governmental authority (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
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having the force of law) in either case enacted, adopted or made after the date
hereof, affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and that
the amount of such capital is increased by or based upon the existence of such
Lender's commitment to lend hereunder and other commitments of this type, then,
upon demand by such Lender (with a copy of such demand to the Agent), the
Borrower shall pay to the Agent for the account of such Lender, from time to
time as specified by such Lender, additional amounts sufficient to compensate
such Lender or such corporation for the reduction of the rate of return on such
Lender's capital or on the capital of such corporation, to the extent that such
Lender reasonably determines such increase in capital to be allocable to the
existence of such Lender's commitment to lend hereunder. A certificate as to
such amounts, setting forth in reasonable detail the basis therefor and the
computation thereof, submitted to the Borrower and the Agent by such Lender
shall be conclusive and binding for all purposes, absent manifest error.
Notwithstanding the foregoing, none of the Lenders shall deliver the notice and
certificate described in this Section 2.11(b) to the Borrower in respect of any
requirements of additional capital except in accordance with the internal policy
of such Lender as to the exercise of similar rights and remedies in similar
circumstances.
(c) If any Lender shall give notice to the Agent and the
Borrower at any time to the effect that Eurocurrency Reserve Requirements are,
or are scheduled to become, effective and that such Lender is or will be
generally subject to such Eurocurrency Reserve Requirements (without regard to
whether such Lender will be able to benefit from proration or offsets that may
be available from time to time under Regulation D) as a result of which such
Lender will incur 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
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will automatically, upon such demand, Convert into a Base Rate Advance or an
Advance that bears interest at the rate set forth in Section 2.07(a)(i), as the
case may be, and (ii) the obligation of such Lender to make Eurodollar Rate
Advances or LIBO Rate Advances or to Convert Revolving Credit Advances into
Eurodollar Rate Advances shall be suspended until the Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist. If any Lender shall exercise its rights under this Section
2.12(a), all payments and prepayments of principal which would otherwise have
been applied to repay the Eurodollar Rate Advances or LIBO Rate Advances that
would have been made by such Lender or the converted Eurodollar Rate Advances or
LIBO Rate Advances of such Lender shall instead be applied to repay the Base
Rate Advances or Advances bearing interest at the rate set forth in Section
2.07(a)(i), as the case may be, made by such Lender in lieu of, or resulting
from the conversion of, such Eurodollar Rate Advances or LIBO Rate Advances, and
all distributions of payments in respect of interest shall be made to the
Lenders ratably based on the interest rates applicable to their respective
Advances.
(b) For purposes of this Section 2.12, a notice to the Borrower
by any Lender shall be effective as to each Eurodollar Rate Advance or LIBO Rate
Advance, if lawful, on the last day 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) or an
extension of the Termination Date pursuant to Section 2.17 and upon the Agent's
receipt of such Lender's Assumption Agreement and recording of the information
contained therein in the Register, from and after the applicable Increase Date
or Extension Date, as the case may be, the Agent shall make all payments
hereunder and under any Notes issued in connection therewith in respect of the
interest assumed thereby to the Assuming Lender.
(b) All computations of interest based on Citibank's base rate
shall be made by the Agent on the basis of a year of 365 or 366 days, as the
case may be, and all computations of interest based on the Eurodollar Rate or
the Federal Funds Rate and of facility fees shall be made by the Agent on the
basis of a year of 360 days, in each case for the actual number of days
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(including the first day but excluding the last day) occurring in the period for
which such interest or facility fees are payable. Each determination by the
Agent of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances or LIBO Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(d) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such 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.
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(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 W-8BEN
or W-8ECI, as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Lender is exempt from or entitled
to a reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes. If the forms provided by a Lender at the time such
Lender first becomes a party to this Agreement indicate a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be
considered excluded from Taxes unless and until such Lender provides the
appropriate forms certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate only shall be considered excluded from Taxes for periods
governed by such forms; provided, however, that, if at the date of the
Assumption Agreement or the Assignment and Acceptance, as the case may be,
pursuant to which a Lender assignee becomes a party to this Agreement, the
Lender assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to the
Lender assignee on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date hereof
by
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Internal Revenue Service form W-8BEN or W-8ECI, 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 owing to
it (other than pursuant to Section 2.11, 2.14 or 8.04(c)) in excess of its
ratable share of payments on account of the Revolving Credit Advances obtained
by all the Lenders, such Lender shall forthwith purchase from the other Lenders
such participations in the Revolving Credit Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances shall
be available (and the Borrower agrees that it shall use such proceeds) for
general corporate purposes of the Borrower and its Subsidiaries, including
acquisitions, stock repurchases and commercial paper backstop.
SECTION 2.17. Extension of Termination Date. (a) At least 30 days
but not more than 45 days prior to the Termination Date, the Borrower, by
written notice to the Agent,
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may request an extension of the Termination Date in effect at such time by 364
days from its then scheduled expiration. The Agent shall promptly notify each
Lender of such request, and each Lender shall in turn, in its sole discretion,
not later than 20 days prior to the Termination Date, notify the Borrower and
the Agent in writing as to whether such Lender will consent to such extension.
If any Lender shall fail to notify the Agent and the Borrower in writing of its
consent to any such request for extension of the Termination Date at least 20
days prior to the Termination Date, such Lender shall be deemed to be a
Non-Consenting Lender with respect to such request. The Agent shall notify the
Borrower not later than 15 days prior to the Termination Date of the decision of
the Lenders regarding the Borrower's request for an extension of the Termination
Date.
(b) If all the Lenders consent in writing to any such request
in accordance with subsection (a) of this Section 2.17, the Termination Date in
effect at such time shall, effective as at the Termination Date (the "Extension
Date"), be extended for 364 days; provided that on each Extension Date the
applicable conditions set forth in Article III shall be satisfied. If less than
all of the Lenders consent in writing to any such request in accordance with
subsection (a) of this Section 2.17, the Termination Date in effect at such time
shall, effective as at the applicable Extension Date and subject to subsection
(d) of this Section 2.17, be extended as to those Lenders that so consented
(each a "Consenting Lender") but shall not be extended as to any other Lender
(each a "Non-Consenting Lender"). To the extent that the Termination Date is not
extended as to any Lender pursuant to this Section 2.17 and the Commitment of
such Lender is not assumed in accordance with subsection (c) of this Section
2.17 on or prior to the applicable Extension Date, the Commitment of such
Non-Consenting Lender shall automatically terminate in whole on such unextended
Termination Date without any further notice or other action by the Borrower,
such Lender or any other Person; provided that such Non-Consenting Lender's
rights under Sections 2.11, 2.14 and 8.04, and its obligations under Section
7.05, shall survive the Termination Date for such Lender as to matters occurring
prior to such date. It is understood and agreed that no Lender shall have any
obligation whatsoever to agree to any request made by the Borrower for any
requested extension of the Termination Date.
(c) If less than all of the Lenders consent to any such request
pursuant to subsection (a) of this Section 2.17, the Agent shall promptly so
notify the Consenting Lenders, and each Consenting Lender may, in its sole
discretion, give written notice to the Agent not later than 10 days prior to the
Termination Date of the amount of the Non-Consenting Lenders' Commitments for
which it is willing to accept an assignment. If the Consenting Lenders notify
the Agent that they are willing to accept assignments of Commitments in an
aggregate amount that exceeds the amount of the Commitments of the
Non-Consenting Lenders, such Commitments shall be allocated among the Consenting
Lenders willing to accept such assignments in such amounts as are agreed between
the Borrower and the Agent. If after giving effect to the assignments of
Commitments described above there remains any Commitments of Non-Consenting
Lenders, the Borrower may arrange for one or more Consenting Lenders or other
Eligible Assignees as Assuming Lenders to assume, effective as of the Extension
Date, any Non-Consenting Lender's Commitment and all of the obligations of such
Non-Consenting Lender under this Agreement thereafter arising, without recourse
to or warranty by, or expense to, such Non-Consenting Lender; provided, however,
that the amount of the Commitment of any such Assuming Lender as a result of
such substitution shall in no event be less than $10,000,000 unless the amount
of the Commitment of such Non-Consenting Lender is less than $10,000,000,
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in which case such Assuming Lender shall assume all of such lesser amount; and
provided further that:
(i) any such Consenting Lender or Assuming Lender shall have
paid to such Non-Consenting Lender (A) the aggregate principal amount of,
and any interest accrued and unpaid to the effective date of the
assignment on, the outstanding Advances, if any, of such Non-Consenting
Lender plus (B) any accrued but unpaid facility fees owing to such
Non-Consenting Lender as of the effective date of such assignment;
(ii) all additional costs reimbursements, expense reimbursements
and indemnities payable to such Non-Consenting Lender, and all other
accrued and unpaid amounts owing to such Non-Consenting Lender hereunder,
as of the effective date of such assignment shall have been paid to such
Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 8.07(a) for such
assignment shall have been paid;
provided further that such Non-Consenting Lender's rights under Sections 2.11,
2.14 and 8.04, and its obligations under Section 7.05, shall survive such
substitution as to matters occurring prior to the date of substitution. At least
three Business Days prior to any Extension Date, (A) each such Assuming Lender,
if any, shall have delivered to the Borrower and the Agent an Assumption
Agreement, duly executed by such Assuming Lender, such Non-Consenting Lender,
the Borrower and the Agent, (B) any such Consenting Lender shall have delivered
confirmation in writing satisfactory to the Borrower and the Agent as to the
increase in the amount of its Commitment and (C) each Non-Consenting Lender
being replaced pursuant to this Section 2.17 shall have delivered to the Agent
any Note or Notes held by such Non-Consenting Lender. Upon the payment or
prepayment of all amounts referred to in clauses (i), (ii) and (iii) of the
immediately preceding sentence, each such Consenting Lender or Assuming Lender,
as of the Extension Date, will be substituted for such Non-Consenting Lender
under this Agreement and shall be a Lender for all purposes of this Agreement,
without any further acknowledgment by or the consent of the other Lenders, and
the obligations of each such Non-Consenting Lender hereunder shall, by the
provisions hereof, be released and discharged.
(d) If (after giving effect to any assignments or assumptions
pursuant to subsection (c) of this Section 2.17) Lenders having Commitments
equal to at least 50% of the Commitments in effect immediately prior to the
Extension Date consent in writing to a requested extension (whether by execution
or delivery of an Assumption Agreement or otherwise) not later than one Business
Day prior to such Extension Date, the Agent shall so notify the Borrower, and,
subject to the satisfaction to the applicable conditions in Article III, the
Termination Date then in effect shall be extended for the additional 364-day
period as described in subsection (a) of this Section 2.17, and all references
in this Agreement, and in the Notes, if any, to the "Termination Date" shall,
with respect to each Consenting Lender and each Assuming Lender for such
Extension Date, refer to the Termination Date as so extended. Promptly following
each Extension Date, the Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) of the extension of the scheduled Termination
Date in effect immediately prior thereto and shall thereupon record in the
Register the relevant information with respect to each such Consenting Lender
and each such Assuming Lender.
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ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections
2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective
on and as of the first date (the "Effective Date") on which the following
conditions precedent have been satisfied:
(a) The Borrower shall have paid all accrued fees and expenses
of the Agent and the Lenders (including the accrued fees and expenses of
counsel to the Agent).
(b) On the Effective Date, the following statements shall be
true and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Borrower, dated
the Effective Date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct in all material respects on and as of the
Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(c) The Agent shall have received on or before the Effective
Date the following, each dated such day, in form and substance
satisfactory to the Agent and (except for the Revolving Credit Notes) in
sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order of the
Lenders, respectively.
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement and the Notes,
and of all documents evidencing other necessary corporate action
and governmental approvals, if any, with respect to this Agreement
and the Notes.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true signatures
of the officers of the Borrower authorized to sign this Agreement
and the Notes and the other documents to be delivered hereunder.
(iv) A favorable opinion of Diana M. Daniels, 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, Increase Date and Extension Date. The obligation of each Lender to
make a Revolving Credit Advance on the occasion of each Revolving Credit
Borrowing (other than a Competitive Bid Advance), each Commitment Increase and
each extension of Commitments pursuant to Section
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2.17 shall be subject to the conditions precedent that the Effective Date shall
have occurred and on the date of such Revolving Credit Borrowing, such Increase
Date or such Extension Date the following statements shall be true (and each of
the giving of the applicable Notice of Revolving Credit Borrowing, request for
Commitment Increase, request for Commitment Extension and the acceptance by the
Borrower of the proceeds of such Revolving Credit Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such Revolving
Credit Borrowing, such Increase Date or such Extension Date such statements are
true):
(a) the representations and warranties contained in Section
4.01 are correct in all material respects on and as of date of such
Revolving Credit Borrowing, such Increase Date or such Extension Date,
before and after giving effect to such Revolving Credit Borrowing, such
Increase Date or such Extension Date 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, such Increase Date or such
Extension Date or from the application of the proceeds therefrom, that
constitutes a Default.
SECTION 3.03. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (i) the Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto, (ii) on
or before the date of such Competitive Bid Borrowing, but prior to such
Competitive Bid Borrowing, the Agent shall have received a Competitive Bid Note
payable to the order of such Lender for each of the one or more Competitive Bid
Advances to be made by such Lender as part of such Competitive Bid Borrowing, in
a principal amount equal to the principal amount of the Competitive Bid Advance
to be evidenced thereby and otherwise on such terms as were agreed to for such
Competitive Bid Advance in accordance with Section 2.03, and (iii) on the date
of such Competitive Bid Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of Competitive Bid Borrowing and the
acceptance by the Borrower of the proceeds of such Competitive Bid Borrowing
shall constitute a representation and warranty by the Borrower that on the date
of such Competitive Bid Borrowing such statements are true):
(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
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other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to the Lenders unless an officer of the Agent responsible for
the transactions contemplated by this Agreement shall have received notice from
such Lender prior to the date that the Borrower, by notice to the Lenders,
designates as the proposed Effective Date, specifying its objection thereto. The
Agent shall promptly notify the Lenders and the Borrower of the occurrence of
the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of
this Agreement and the Notes, and the consummation of the transactions
contemplated hereby, are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's charter or by-laws or (ii) law or any
contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery and
performance by the Borrower of this Agreement or the Notes.
(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 2, 2000, 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
PricewaterhouseCoopers LLP, independent public accountants, and the
Consolidated balance sheet of the Borrower and its Subsidiaries as at
April 2, 2000, and the related Consolidated statements of income and cash
flows of the Borrower and its Subsidiaries for the three 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 April 2, 2000, and said
statements of income and cash flows for the three months then ended, to
year-end audit adjustments, the Consolidated financial condition of the
Borrower and its Subsidiaries as at such dates and the Consolidated
results of the operations of the Borrower and its Subsidiaries for the
periods
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ended on such dates, all in accordance with generally accepted accounting
principles consistently applied. Between January 2, 2000 and the date
hereof, there has been no Material Adverse Change.
(f) There is no pending or threatened action, suit,
investigation, litigation or proceeding, including, without limitation,
any Environmental Action, affecting the Borrower or any of its
Subsidiaries before any court, governmental agency or arbitrator that (i)
is pending or threatened on the date hereof and is reasonably likely to
have a Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(g) The Borrower is not, and immediately after the application
by the Borrower of the proceeds of each Advance will not be an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
(h) After giving effect to the application of the proceeds of
each Advance, not more than 25% of the value of the assets of the
Borrower and its Subsidiaries (as determined in good faith by the
Borrower) subject to the provisions of Section 5.02(a) or subject to any
restriction contained in any agreement or instrument between the Borrower
and any Lender or any Affiliate of any Lender relating to Debt and within
the scope of Section 6.01(d) will consist of or be represented by Margin
Stock.
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
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contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained.
(c) Maintenance of Insurance. Maintain, and cause each of its
Significant Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and
covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in
which the Borrower or such Significant Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain its corporate existence, rights (charter and statutory) and
franchises if the loss or failure to maintain the same could,
individually or in the aggregate, be reasonably likely to have a Material
Adverse Effect; provided, however, that the Borrower may consummate any
merger or consolidation permitted under Section 5.02(b).
(e) Visitation Rights. At any reasonable time and from time to
time on reasonable notice and at reasonable intervals, permit the Agent
or any of the Lenders, or any agents or representatives thereof, to visit
the properties of the Borrower and any of its Subsidiaries and to discuss
the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers or directors and, during the
continuance of any 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
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Borrower as having been prepared in accordance with generally
accepted accounting principles and certificates of the chief
financial officer of the Borrower as to compliance with the terms
of this Agreement, provided that in the event of any change in
GAAP used in the preparation of such financial statements, the
Borrower shall also provide, if necessary for the determination of
compliance with Section 5.03, a statement of reconciliation
conforming such financial statements to GAAP;
(ii) as soon as available and in any event within 105
days after the end of each fiscal year of the Borrower, a copy of
the annual audit report for such year for the Borrower and its
Subsidiaries, containing the Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal year
and Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for such fiscal year, in each case
accompanied by an opinion by PricewaterhouseCoopers 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
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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.
(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.
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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 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
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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 Graham Interests) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934), directly
or indirectly, of Voting Stock of the Borrower (or other securities
convertible into such Voting Stock) representing 30% or more of the
combined voting power of all Voting Stock of the Borrower and such
combined voting power exceeds the then current voting power of the Voting
Stock of the Borrower (or other securities convertible into such Voting
Stock) controlled by the Graham 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
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Advances to be terminated, whereupon the same shall forthwith terminate, and
(ii) shall at the request, or may with the consent, of the Required Lenders, by
notice to the Borrower, declare the Notes, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and payable, whereupon
the Notes, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to the Borrower under the Federal Bankruptcy Code, (A) the
obligation of each Lender to make Advances shall automatically be terminated and
(B) the Notes, all such interest and all such amounts shall automatically become
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the payee of any Note as the holder thereof until the Agent receives and accepts
an Assumption Agreement entered into by an Assuming Lender as provided in
Section 2.05(b) or 2.17, as the case may be, or 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
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execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or any other instrument or document furnished pursuant hereto;
and (vi) shall incur no liability under or in respect of this Agreement by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier, telegram or telex) reasonably believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the
Agent (to the extent not reimbursed by the Borrower), ratably according to the
respective principal amounts of the Revolving Credit Notes then held by each of
them (or if no Revolving Credit Notes are at the time outstanding or if any
Revolving Credit Notes are held by Persons that are not Lenders, ratably
according to the respective amounts of their Commitments), from and against any
and all 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
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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. Documentation Agent and Syndication Agent. SunTrust
has been designated as syndication agent and Chase has been designated as
documentation agent in recognition of their respective Commitments, and the use
of such title does not impose on such Lender any duties or obligations greater
than those of any other Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Revolving Credit Notes, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Lenders, do any of the
following: (a) waive any of the conditions specified in Section 3.01, (b)
increase the Commitments of the Lenders other than as provided in Section
2.05(b), (c) reduce the principal of, or interest on, the Revolving Credit Notes
or any fees or other amounts payable hereunder, (d) postpone any date fixed for
any payment of principal of, or interest on, the Revolving Credit Notes or any
fees or other amounts payable hereunder, (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Revolving Credit
Notes that shall be required for the Lenders or any of them to take any action
hereunder or (f) amend this Section 8.01; provided further that no amendment,
waiver or consent shall, unless in writing and signed by the Agent in addition
to the Lenders required above to take such action, affect the rights or duties
of the Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and telecopied, telegraphed, telexed or delivered, if to
the Borrower, at its address at 1150 15th Street, N.W., Washington, D.C. 20071,
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 Two Penns Way, Suite 200, New Castle, Delaware 19720, Attention:
Brian Maxwell;
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or, as to the Borrower or the Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Agent. All such notices and
communications shall, when hand delivered, telecopied, telegraphed or telexed,
be effective when received. Delivery by telecopier of an executed counterpart of
any amendment or waiver of any provision of this Agreement or the Notes or of
any Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay
on demand all reasonable out-of-pocket costs and expenses of the Agent in
connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, (A) all due diligence,
syndication (including printing, distribution and bank meetings), transportation
and duplication 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
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than on the last day of the Interest Period for such Advance, as a result of a
payment or Conversion pursuant to Section 2.08(d) or (e), 2.09, 2.10 or 2.12,
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or by an Eligible Assignee to a Lender other than on the last day
of an Interest Period for such Advance upon an assignment of rights and
obligations under this Agreement pursuant to Section 8.07 as a result of a
demand by the Borrower pursuant to Section 8.07(a), the Borrower shall, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion, including, without limitation, any
loss (excluding loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in Sections 2.11, 2.14 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement and the Note held by such Lender, whether or not such Lender shall
have made any demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify the Borrower
after any such set-off and application, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of each Lender and its Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become effective
upon satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Agent and each Lender and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may
with the consent of the Agent and the Borrower (which consent shall not be
unreasonably withheld or delayed) and, if demanded by the Borrower (following a
demand by such Lender pursuant to Section 2.11 or 2.14 or following such
Lender's Downgrade) at a time when no Default has
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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 $3,500. Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with
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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 Assumption Agreement and each Assignment and
Acceptance delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and the Commitment of, and principal
amount of the Advances owing to, each Lender from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or
other entities (other than the Borrower or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its 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,
47
<PAGE> 53
that (i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain the holder
of any such Note for all purposes of this Agreement, (iv) the Borrower, the
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this Agreement or
any Note, or any consent to any departure by the Borrower therefrom, except to
the extent that such amendment, waiver or consent would reduce the principal of,
or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Confidentiality. Neither the Agent nor any Lender
shall disclose any Confidential Information to any other Person without the
consent of the Borrower, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, accountants, auditors,
counsel, agents and advisors and, as contemplated by Section 8.07(f), to actual
or prospective assignees and participants, and then only on a confidential
basis, (b) as required by any law, rule or regulation or judicial process, (c)
to any rating agency when required by it, provided that, prior to any such
disclosure, such rating agency shall undertake to preserve the confidentiality
of any Confidential Information relating to the Borrower received by it from
such Lender and (d) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
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
48
<PAGE> 54
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.
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.
49
<PAGE> 55
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/ John B. Morse, Jr.
---------------------------------------------
Title: Vice President
CITIBANK, N.A.
as Agent
By /s/ Carolyn A. Kee
---------------------------------------------
Title: Vice President
50
<PAGE> 56
Initial Lenders
Commitment
Agent
$100,000,000 CITIBANK, N.A.
By /s/ Carolyn A. Kee
---------------------------------------------
Title: Vice President
Syndication Agent
$75,000,000 SUNTRUST BANK
By /s/ Nancy R. Petrash
---------------------------------------------
Title: Director
Documentation Agent
$75,000,000 THE CHASE MANHATTAN BANK
By /s/ Charles Swarns, Jr.
---------------------------------------------
Title: Vice President
$250,000,000 Total of the Commitments
51
<PAGE> 57
SCHEDULE I
The Washington Post Company
364-Day Credit Agreement
APPLICABLE LENDING OFFICES
<TABLE>
<CAPTION>
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
---------------------- ----------------------- -------------------------
<S> <C> <C>
The Chase Manhattan Bank 270 Park Avenue 270 Park Avenue
New York, NY 10017 New York, NY 10017
Attn: Charles Swarns Attn: Charles Swarns
T: 718 242-3792 T: 718 242-3792
F: 718 242-3846 F: 718 242-3846
Citibank, N.A. Two Penns Way Two Penns Way
New Castle, DE 19720 New Castle, DE 19720
SunTrust Bank 1445 New York Avenue, NW 1445 New York Avenue, NW
Washington, DC 20005 Washington, DC 20005
Attn: Nancy Petrash Attn: Nancy Petrash
T: 202 879-6432 T: 202 879-6432
F: 202 879-6137 F: 202 879-6137
</TABLE>
<PAGE> 58
SCHEDULE 5.02(a)
EXISTING LIENS
[None]
<PAGE> 59
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated: _____________, 200_
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 later of the Termination Date and the date designated
pursuant to Section 2.06 of the Credit Agreement (each as defined in the Credit
Agreement referred to below) the principal sum of U.S.$[amount of the Lender's
Commitment in figures] or, if less, the aggregate principal amount of the
Revolving Credit Advances made by the Lender to the Borrower pursuant to the
364-Day Credit Agreement dated as of September 20, 2000 among the Borrower, the
Lender and certain other lenders parties thereto, Citibank, N.A., as Agent for
the Lender and such other lenders, Salomon Smith Barney Inc., as lead arranger
and book manager, SunTrust Bank, as syndication agent, and The Chase Manhattan
Bank, as documentation agent (as amended or modified from time to time, the
"Credit Agreement"; the terms defined therein being used herein as therein
defined), outstanding on such date.
The Borrower promises to pay interest on the unpaid principal
amount of each Revolving Credit Advance from the date of such Revolving Credit
Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Agent, at 399 Park Avenue, New
York, New York 10043, 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.
<PAGE> 60
This Promissory Note is one of the Revolving Credit Notes referred
to in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, (i) provides for the making of Revolving Credit
Advances by the Lender to the Borrower from time to time in an aggregate amount
not to exceed at any time outstanding the U.S. dollar amount first above
mentioned, the indebtedness of the Borrower resulting from each such Revolving
Credit Advance being evidenced by this Promissory Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified.
THE WASHINGTON POST COMPANY
By
------------------------------------------------
Title:
2
<PAGE> 61
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
AMOUNT OF UNPAID
AMOUNT OF PRINCIPAL PAID PRINCIPAL
DATE ADVANCE OR PREPAID BALANCE NOTATION MADE BY
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
<S> <C> <C> <C> <C>
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
</TABLE>
3
<PAGE> 62
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated: ______________, 200_
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 364-Day Credit Agreement dated as of September
20, 2000 among the Borrower, the Lender and certain other lenders parties
thereto, Citibank, N.A., as Agent for the Lender and such other lenders, Salomon
Smith Barney Inc., as lead arranger and book manager, SunTrust Bank, as
syndication agent, and The Chase Manhattan Bank, as documentation agent (as
amended or modified from time to time, the "Credit Agreement"; the terms defined
therein being used herein as therein defined)), on _______________, 200_, 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 399 Park Avenue, New York, New York 10043 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.
<PAGE> 63
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
2
<PAGE> 64
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
Two Penns Way
New Castle, Delaware 19720 [Date]
Attention: Brian Maxwell
Ladies and Gentlemen:
The undersigned, The Washington Post Company, refers to the
364-Day Credit Agreement, dated as of September 20, 2000 (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, Salomon Smith Barney Inc.,
as lead arranger and book manager, SunTrust Bank, as syndication agent, and The
Chase Manhattan Bank, as documentation 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 _______________, 200_.
(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
<PAGE> 65
(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:
2
<PAGE> 66
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
Two Penns Way
New Castle, Delaware 19720 [Date]
Attention: Brian Maxwell
Ladies and Gentlemen:
The undersigned, The Washington Post Company, refers to the
364-Day Credit Agreement, dated as of September 20, 2000 (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, Salomon Smith Barney Inc.,
as lead arranger and book manager, SunTrust Bank, as syndication agent, and The
Chase Manhattan Bank, as documentation 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:
<TABLE>
<S> <C>
(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)
------------------------ ------------------------
</TABLE>
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 of the Credit Agreement 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;
<PAGE> 67
(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:
2
<PAGE> 68
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Credit Agreement dated as of
September 20, 2000 (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"), Salomon Smith Barney Inc., as lead
arranger and book manager, SunTrust Bank, as syndication agent, and The Chase
Manhattan Bank, as documentation agent. Terms defined in the Credit Agreement
are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Credit Agreement as of the
date hereof (other than in respect of Competitive Bid Advances and Competitive
Bid Notes) equal to the percentage interest specified on Schedule 1 hereto of
all outstanding rights and obligations under the Credit Agreement (other than in
respect of Competitive Bid Advances and Competitive Bid Notes). After giving
effect to such sale and assignment, the Assignee's Commitment and the amount of
the Revolving Credit Advances owing to the Assignee will be as set forth on
Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto; and (iv) attaches the Revolving Credit Note
held by the Assignor and requests that the Agent exchange such Revolving Credit
Note for a new Revolving Credit Note payable to the order of the Assignee in an
amount equal to the Commitment assumed by the Assignee pursuant hereto or new
Revolving Credit Notes payable to the order of the Assignee in an amount equal
to the Commitment assumed by the Assignee pursuant hereto and the Assignor in an
amount equal to the Commitment retained by the Assignor under the Credit
Agreement, respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently 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
1
<PAGE> 69
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.
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.
2
<PAGE> 70
Schedule 1
to
Assignment and Acceptance
<TABLE>
<S> <C>
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:* , 200
--------------- -
</TABLE>
[NAME OF ASSIGNOR], as Assignor
By
------------------------------------
Title:
Dated: , 200
--------------- --
[NAME OF ASSIGNEE], as Assignee
By
------------------------------------
Title:
Dated: , 200
--------------- --
-----------------
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
3
<PAGE> 71
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted and Approved this
day of , 200
---------- --------------- --
CITIBANK, N.A., as Agent
By
---------------------------------------
Title:
Approved this day
----------
of , 200
--------------- --
THE WASHINGTON POST COMPANY
By
---------------------------------------
Title:
4
<PAGE> 72
EXHIBIT D - FORM OF
ASSUMPTION AGREEMENT
Dated:
--------
The Washington Post Company
1150 15th Street, N.W.
Washington, D.C. 20071
Citibank, N.A., as Agent
Two Penns Way
New Castle, Delaware 19720
Attention: Brian Maxwell
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement dated as of
September 20, 2000 among The Washington Post Company (the "Borrower"), the
Lenders parties thereto, Citibank, N.A., as Agent, Salomon Smith Barney Inc., as
lead arranger and book manager, SunTrust Bank, as syndication agent, and The
Chase Manhattan Bank, as documentation 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)] [2.17] 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/Extension Date]
and that its Commitment shall as of such date be $__________.
The undersigned (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01(e) thereof, the most recent financial statements referred to in
Section 5.01(i) thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assumption Agreement; (ii) agrees that it will, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement;
(iii) appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement as are delegated
to the Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (iv) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement are
required to be performed 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
<PAGE> 73
Assuming Lender, dated as of the [applicable Increase Date/Extension 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/Extension 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.
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]
2
<PAGE> 74
Acknowledged and Agreed to:
THE WASHINGTON POST COMPANY
By
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Name:
Title
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EXHIBIT E - FORM OF
OPINION OF COUNSEL
FOR THE BORROWER
September 20, 2000
To each of the Lenders parties
to the Credit Agreement dated
as of September 20, 2000 among
The Washington Post Company,
said Lenders, Citibank, N.A., as
Agent for said Lenders,
Salomon Smith Barney Inc.,
as lead arranger and book
manager, SunTrust Bank, as
syndication agent, and
The Chase Manhattan Bank,
as documentation agent
The Washington Post Company
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(c)(iv)
of the 364-Day Credit Agreement, dated as of September 20, 2000 (the "Credit
Agreement"), among The Washington Post Company (the "Borrower"), the Lenders
parties thereto, Citibank, N.A., as Agent for said Lenders, Salomon Smith Barney
Inc., as lead arranger and book manager, SunTrust Bank, as syndication agent,
and The Chase Manhattan Bank, as documentation agent. Terms defined in the
Credit Agreement are used herein as therein defined.
I am the General Counsel of the Borrower and as such I am familiar
with the Credit Agreement and the corporate proceedings taken by the Borrower to
authorize the execution and delivery of the Credit Agreement.
For purposes of this opinion, I have examined:
(1) The Credit Agreement.
(2) The documents furnished by the Borrower pursuant to Article
III of the Credit Agreement.
(3) The Certificate of Incorporation of the Borrower and all
amendments thereto (the "Charter").
(4) The by-laws of the Borrower and all amendments thereto (the
"By-laws").
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(5) A certificate of the Secretary of State of Delaware, dated
September __, 2000, 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 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 Borrower is a corporation validly existing and in good
standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the Borrower of
the Credit Agreement and the Notes, and the consummation of the
transactions contemplated thereby, are within the Borrower's corporate
powers, and have been duly authorized by all necessary corporate action,
and do not contravene (i) the Charter or the By-laws or (ii) any law,
rule or regulation applicable to the Borrower (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System) or (iii) to the best of my knowledge after appropriate inquiry,
(x) any contractual restriction or (y) any legal restriction contained in
orders, writs, judgments, awards, injunctions or decrees applicable to
the Borrower or its assets, in each case that affects or purports to
affect the Borrower's right to borrow money or the Borrower's obligations
under the Credit Agreement or Notes. The Credit Agreement and the Notes
delivered on the date hereof have been duly executed and delivered on
behalf of the Borrower.
3. No authorization, approval or other action by, and no
notice to or filing with, any United States Federal, New York or, to the
extent required under the General Corporation Law of the State of
Delaware, Delaware governmental authority or regulatory body is required
for the due execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes.
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
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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
of similar rights with respect to such participation and (ii) the effect
of the law of any jurisdiction other than the State of New York wherein
any Lender may be located or wherein enforcement of the Credit Agreement
or the Notes may be sought that limits the rates of interest legally
chargeable or collectible.
Very truly yours,
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