<PAGE>
PAGE 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1999
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _____________ to _____________
Commission file number 1-7564
DOW JONES & COMPANY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-5034940
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
200 LIBERTY STREET, NEW YORK, NEW YORK 10281
(Address of principal executive offices) (Zip Code)
(212) 416-2000
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes X No
--- ---
The number of shares outstanding of each of the issuer's classes of
common stock on June 30, 1999: 69,591,578 shares of Common Stock and
21,253,559 shares of Class B Common Stock.
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PAGE 2
PART I. FINANCIAL INFORMATION
ITEM 1. Financial Statements
<TABLE>
<CAPTION>
CONDENSED CONSOLIDATED STATEMENTS OF INCOME (L0SS)
Dow Jones & Company, Inc.
================================================================================
Quarters Ended Six Months Ended
(in thousands, except June 30 June 30
per share amounts) 1999 1998 1999 1998
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenues:
Advertising $302,609 $277,043 $557,336 $ 521,709
Information services 94,395 209,782 189,302 477,165
Circulation and other 113,567 114,317 226,015 223,749
- --------------------------------------------------------------------------------
Total revenues 510,571 601,142 972,653 1,222,623
- --------------------------------------------------------------------------------
Expenses:
News, operations and
development 134,264 186,575 262,445 404,083
Selling, administrative
and general 177,219 211,790 346,880 437,549
Newsprint 36,645 43,028 74,040 82,883
Second class postage
and carrier delivery 30,032 29,639 59,047 57,907
Depreciation and
amortization 24,844 44,246 49,860 98,859
Restructuring 2,755 2,755
- --------------------------------------------------------------------------------
Operating expenses 405,759 515,278 795,027 1,081,281
- --------------------------------------------------------------------------------
Operating income 104,812 85,864 177,626 141,342
Other income (deductions):
Investment income 1,896 2,125 4,771 3,032
Interest expense (1,242) (1,838) (2,823) (4,520)
Equity in losses of
associated companies (6,935) (3,618) (10,626) (9,505)
(Loss) gain on disposition of
businesses and investments (136,387) 10,618 (120,997)
Other, net (126) (2,978) 324 (3,272)
- --------------------------------------------------------------------------------
Income (loss)
before income taxes 98,405 (56,832) 179,890 6,080
Income taxes (benefit) 41,193 (5,135) 71,156 23,079
- --------------------------------------------------------------------------------
Net income (loss) $ 57,212 $(51,697) $108,734 $ (16,999)
================================================================================
Per Share:
Net income per share:
- Basic $0.63 $(0.54) $1.19 $(0.18)
- Diluted 0.62 (0.54) 1.18 (0.18)
Weighted-average shares outstanding:
- Basic 90,699 96,476 91,063 96,610
- Diluted 91,676 96,476 91,996 96,610
Cash dividends declared $0.48 $0.48 $0.72 $0.72
- --------------------------------------------------------------------------------
Comprehensive income (loss) $ 64,084 $(46,175) $128,929 $ (7,291)
================================================================================
See notes to condensed consolidated financial statements.
</TABLE>
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PAGE 3
<TABLE>
<CAPTION>
CONDENSED CONSOLIDATED
STATEMENTS OF CASH FLOWS
Dow Jones & Company, Inc.
==========================================================================
Six Months Ended June 30
(in thousands) 1999 1998
- --------------------------------------------------------------------------
<S> <C> <C>
Operating Activities:
Net income (loss) $108,734 $(16,999)
Adjustments to reconcile net income (loss)
To net cash provided by operating activities:
Depreciation and amortization 49,860 98,859
(Gain) loss on disposition of businesses
and investments (10,618) 120,997
Changes in assets and liabilities (71,836) (101,892)
Other, net 13,001 18,003
- --------------------------------------------------------------------------
Net cash provided by operating activities 89,141 118,968
- --------------------------------------------------------------------------
Investing Activities:
Additions to plant and property (98,084) (131,954)
Businesses and investments acquired,
net of cash received (24,392) (46,323)
Disposition of businesses and investments 13,250 465,964
Other, net 801 2,402
- --------------------------------------------------------------------------
Net cash (used in) provided by
investing activities (108,425) 290,089
- --------------------------------------------------------------------------
Financing Activities:
Cash dividends (43,839) (46,630)
Reduction of long-term debt (63,015)
Repurchase of treasury stock, net of put premiums (70,500) (189,891)
Other, net 17,546 36,209
- --------------------------------------------------------------------------
Net cash used in financing activities (96,793) (263,327)
- --------------------------------------------------------------------------
Effect of exchange rate changes on cash (134) (658)
- --------------------------------------------------------------------------
(Decrease) increase in cash and cash equivalents (116,211) 145,072
Cash and cash equivalents at beginning of year 142,877 23,763
- --------------------------------------------------------------------------
Cash and cash equivalents at June 30 $ 26,666 $168,835
==========================================================================
See notes to condensed consolidated financial statements.
</TABLE>
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PAGE 4
<TABLE>
<CAPTION>
CONDENSED CONSOLIDATED
BALANCE SHEETS
Dow Jones & Company, Inc.
==========================================================================
June 30 December 31
(in thousands) 1999 1998
- --------------------------------------------------------------------------
<S> <C> <C>
Assets:
Cash and cash equivalents $ 26,666 $ 142,877
Accounts receivable-trade, net 254,016 236,928
Accounts receivable-other 22,559 19,038
Inventories 12,832 11,386
Deferred income taxes 13,618 13,992
Prepaid expenses 17,211 18,068
Other investments 79,448
- --------------------------------------------------------------------------
Total current assets 426,350 442,289
- --------------------------------------------------------------------------
Investments in associated companies,
at equity 41,871 41,406
Other investments 169,290 222,858
Plant and property, at cost 1,667,802 1,575,781
Less, accumulated depreciation 1,019,378 973,664
- --------------------------------------------------------------------------
648,424 602,117
Goodwill, less accumulated amortization 84,801 86,554
Deferred income taxes 66,425 67,171
Other assets 30,284 28,927
- --------------------------------------------------------------------------
Total assets $1,467,445 $1,491,322
==========================================================================
Liabilities:
Accounts payable and accrued liabilities $ 269,744 $ 324,190
Dividend payable 21,799
Income taxes 35,396 37,198
Unearned revenue 230,947 238,409
- --------------------------------------------------------------------------
Total current liabilities 557,886 599,797
Long-term debt 149,916 149,889
Other noncurrent liabilities 237,083 232,296
- --------------------------------------------------------------------------
Total liabilities 944,885 981,982
- --------------------------------------------------------------------------
Stockholders' Equity:
Common stock 102,181 102,181
Additional paid-in capital 138,589 137,479
Retained earnings 667,335 624,239
Accumulated other comprehensive income 56,008 35,813
- --------------------------------------------------------------------------
964,113 899,712
Less, treasury stock, at cost 441,553 390,372
- --------------------------------------------------------------------------
Total stockholders' equity 522,560 509,340
- --------------------------------------------------------------------------
Total liabilities and stockholders' equity $1,467,445 $1,491,322
==========================================================================
See notes to condensed consolidated financial statements.
</TABLE>
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PAGE 5
NOTES TO FINANCIAL STATEMENTS
Dow Jones & Company, Inc.
1. The accompanying unaudited condensed consolidated financial
statements reflect all adjustments considered necessary by management
to present fairly the company's consolidated financial position as of
June 30, 1999, and December 31, 1998, and the consolidated results of
operations for the three and six month periods ended June 30, 1999 and
1998 and the consolidated cash flows for the six-month periods then
ended. All adjustments reflected in the accompanying unaudited
condensed consolidated financial statements are of a normal recurring
nature. The results of operations for the respective interim periods
are not necessarily indicative of the results to be expected for the
full year.
2. Second quarter 1999 included a restructuring charge of $2.8 million
($1.6 million after-tax or 2 cents per diluted share) for employee
severance associated with the conversion to electronic pagination of
The Wall Street Journal. The severance charge of $2.8 million, which
applies to approximately 70 employees, reduced operating income for the
print publishing segment in the second quarter of 1999. The company
expects that the layoffs will be substantially completed in the second
quarter of 2000.
3. First quarter 1999 included a net gain of $10.6 million, or 12 cents
per share, from the sale of a portion of the company's minority interest
in OptiMark Technologies, Inc.
4. First quarter 1998 included a net gain of $10.1 million, or 11 cents
per share, from the sales of the company's interests in WBIS+ TV (eight
cents per share) and Mediatex Communications Corp., publisher of Texas
Monthly magazine (three cents per share).
5. On May 29, 1998, the company completed the sale of Telerate
(formerly, Dow Jones Markets), a former subsidiary, to Bridge
Information Systems, Inc. The accepted purchase price (subject to
post-closing adjustment) included $360 million in cash and $150 million
of five year, convertible, 4% preferred stock of Bridge. In the second
quarter of 1998, a loss was recorded on the sale of Telerate of $136.4
million ($98 million after-tax or $1.02 per diluted share). Pro forma
results excluding Telerate operations and loss on sale are included in
the Other Information section as supplemental data on pages 18 and 19
of this Form 10-Q. Certain liabilities included in the accrued
liabilities as of June 30, 1999 and December 31, 1998 are principally
related to long-term contracts the company had entered into when
Telerate was a wholly-owned subsidiary.
6. The company has guaranteed payment under certain circumstances of
certain annual minimum payments for data acquired by Telerate from
Cantor Fitzgerald Securities and Market Data Corporation under contracts
entered into during the period when Telerate was a subsidiary of the
company. The annual minimum payments average approximately $50 million
per year through October 2006. Bridge has agreed to indemnify the
company if the company is required to make any payments under the
guarantee.
7. In the first quarter of 1999, the company repurchased 1.54 million
shares of its common stock at an aggregate price of $70.5 million.
Additionally, the company sold in the second quarter of 1999 put options
(puts) on approximately 1.3 million shares bringing to 2 million the
number of shares subject to puts at June 30, 1999. Outstanding puts
could obligate the company to repurchase up to $94.6 million of its
common stock (net of put premiums) through June 2000.
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PAGE 6
<TABLE>
<CAPTION>
NOTES TO FINANCIAL STATEMENTS (cont.)
Dow Jones & Company, Inc.
8. Comprehensive income was computed as follows:
=================================================================================
Quarters Ended Six Months Ended
June 30 June 30
(in thousands) 1999 1998 1999 1998
- ---------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net income $ 57,212 $(51,697) $108,734 $(16,999)
Foreign currency translation
adjustments (621) 8,643 (1,077) 8,461
Less: realized foreign currency
translation adjustment
included in net (loss) (9,023) (9,023)
Unrealized gain on investments 7,493 5,902 21,272 10,270
- ---------------------------------------------------------------------------------
Comprehensive income $ 64,084 (46,175) $128,929 $ (7,291)
=================================================================================
</TABLE>
<TABLE>
<CAPTION>
9. Diluted earnings per share have been computed as follows:
=================================================================================
Quarters Ended Six Months Ended
(in thousands, except June 30 June 30
share amounts) 1999 1998 1999 1998
- ---------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net income $57,212 $(51,697) $108,734 $(16,999)
Weighted-average shares
outstanding - basic 90,699 96,476 91,063 96,610
Stock options 840 735
Other, principally
contingent stock rights 137 198
- ---------------------------------------------------------------------------------
Weighted-average shares
outstanding - diluted 91,676 96,476 91,996 96,610
Diluted earnings per share $0.62 $(0.54) $1.18 $(0.18)
=================================================================================
Certain employee stock options and put options have been excluded
from diluted earnings per share in 1999 and 1998 because to include such
securities would be antidilutive.
</TABLE>
10. Certain of the 1998 amounts have been reclassified for comparative
purposes.
11. The table on the following page compares revenues, income (loss)
before income taxes and EBITDA by business segment for the 1999 and
1998 quarters and six months ended June 30:
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PAGE 7
<TABLE>
<CAPTION>
SEGMENT INFORMATION
FOR THE QUARTERS ENDED AND SIX MONTHS ENDED JUNE 30
====================================================================================
Quarters Ended Six Months Ended
June 30 June 30
(in thousands) 1999 1998 1999 1998
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenues:
Print publishing $327,192 $307,885 $617,800 $ 589,389
Electronic publishing 98,786 97,464 196,323 195,045
Community newspapers 84,593 81,390 158,530 152,287
------- -------- -------- --------
Segment pro forma revenues 510,571 486,739 972,653 936,721
Telerate 114,403 285,902
------- -------- -------- --------
Consolidated revenues $510,571 $601,142 $972,653 $1,222,623
- ------------------------------------------------------------------------------------
Income (loss) before income taxes:
Print publishing (2) $ 79,850 $ 69,749 $132,319 $ 122,972
Electronic publishing 10,181 18,377 23,668 39,658
Community newspapers 23,603 16,067 37,596 24,222
Corporate (8,822) (6,118) (15,957) (12,283)
------- ------- -------- --------
Pro forma operating income 104,812 98,075 177,626 174,569
Telerate (12,211) (33,227)
------- ------- -------- --------
Consolidated operating income 104,812 85,864 177,626 141,342
Equity in losses of associated
companies (6,935) (3,618) (10,626) (9,505)
(Loss) gain on disposition
of businesses and investments (136,387) 10,618 (120,997)
Other income (deductions),net 528 (2,691) 2,272 (4,760)
-------- -------- -------- --------
Income (loss) before income taxes $ 98,405 $(56,832) $179,890 $ 6,080
- ------------------------------------------------------------------------------------
EBITDA: (1a)
Print publishing $ 96,611 $ 82,255 $163,424 $ 148,057
Electronic publishing 16,644 24,034 36,436 50,866
Community newspapers 27,978 20,439 46,338 32,890
Corporate (8,822) (6,118) (15,957) (12,283)
------- ------- -------- -------
Segment pro forma EBITDA 132,411 120,610 230,241 219,530
Telerate 9,500 20,671
------- ------- -------- -------
Consolidated EBITDA $132,411 $130,110 $230,241 $ 240,201
EBITDA Margin:
Print publishing 29.5% 26.7% 26.5% 25.1%
Electronic publishing 16.8% 24.7% 18.6% 26.1%
Community newspapers 33.1% 25.1% 29.2% 21.6%
All segments (2a) 25.9% 24.8% 23.7% 23.4%
====================================================================================
(1a) EBITDA is computed as operating income excluding depreciation,
amortization and restructuring costs.
(2a) Excludes Telerate results from operations and loss on sale.
</TABLE>
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PAGE 8
ITEM 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
FOR THE SECOND QUARTERS AND THE SIX MONTHS ENDED JUNE 30, 1999 AND 1998
Net income for the second quarter was $57.2 million, or $.62 per
diluted share, in 1999 versus a loss of $51.7 million, or $.54 per share
in 1998. Revenues declined from $601.1 million in 1998's second quarter
to $510.6 million this year; however, second quarter operating income
increased to $104.8 million from $85.9 million a year ago.
In the first half net income was $108.7 million, or $1.18 per
diluted share, compared with a net loss of $17 million, or $.18 per
diluted share, last year. Revenues dropped to $972.7 million from the
$1.2 billion earned last year. Operating income of $177.6 million in
1999's first half improved from $141.3 million in 1998.
On May 29, 1998, the company completed the sale of Telerate, its
former subsidiary, to Bridge Information Systems, Inc. A loss on the
sale of Telerate of $136.4 million ($98 million after-tax) was recorded
in the second quarter of 1998. Under the terms of the sales agreement,
the purchase price is subject to possible post-closing adjustments
including working capital changes and indemnification, which at this
time the company believes will be immaterial. Pro forma results
excluding Telerate operations and loss on sale are included in the Other
Information section as supplemental data on pages 18 and 19 of this Form
10-Q.
In the second quarter of 1999, the company recorded a restructuring
charge of $2.8 million ($1.6 million after-tax) for employee severance
as part of its conversion process to electronic pagination of The Wall
Street Journal. The company expects additional severance charges
associated with realigning its technology organization to be recorded
in the second half of 1999.
For purposes of understanding the financial results for the periods
presented in this Form 10-Q, the following text excludes Telerate
results from operations and loss on sale (pro forma results). In
addition, the following special items are excluded from all periods;
(1) second quarter 1999 - employee severance charge ($1.6 million after
- -tax, or -$.02 per share), (2) first quarter 1999 - net gain on sale of
the company's interest in OptiMark Technologies, Inc. ($10.6 million
after-tax, or +$.12 per share) and (3) first quarter 1998 - net gain on
sales of the company's interest in WBIS+ TV and Mediatex Communications
Corp. ($10.1 million after-tax, or +$.11 per share).
Excluding the restructuring charge, second quarter 1999 net income
was $58.9 million, or $.64 per diluted share, compared with pro forma
net income of $54.7 million, or $.56 per diluted share, in 1998's
second quarter. Earnings per share increased $.08, or 14.3%, per
diluted share due to improved print publishing operating income (+$.03
per diluted share excluding U.S. Television, newsprint price benefit
and severance charge), enhanced earnings at community newspapers (+$.04,
excluding newsprint price benefits), impact of share repurchases
(+$.04), and lower newsprint expense (+$.04). These increases were
partially offset by reduced earnings in electronic publishing (-$.05)
and corporate expenses (-$.02) related to the launch of process redesign
initiatives and third party fees for the Dow Jones Interactive and
Reuters Business Briefing joint venture, which formed Dow Jones Reuters
Business Interactive LLC on July 1, 1999.
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PAGE 9
Operating income (excluding the restructuring charge), was $107.6
million, an increase of $9.5 million, or 9.7%, compared with pro forma
operating income in 1998's second quarter of $98.1 million. This rise
was mostly due to improved advertising linage of 6.9% at The Wall Street
Journal and an increase in operating income of $7.5 million, or 46.9%,
at community newspapers.
Second quarter revenues of $510.6 million grew $23.8 million, or
4.9%, compared with pro forma revenue in 1998. The revenue growth was
driven by an advertising increase of $25.6 million, or 9.2%.
Consolidated operating expenses (before the restructuring charge)
increased $14.3 million, or 3.7%, to $403 million. Print publishing
expenses, excluding newsprint and special charges, rose 5.6%, partially
due to higher compensation, selling efforts and continued efforts to
expand international print circulation. Electronic publishing expenses
grew 12% from sales and marketing, compensation and content fees all
partially related to international expansion. Consolidated newsprint
expense decreased $6.4 million, or 14.8%, compared with the like period
in 1998, reflecting an average 17% decline in newsprint prices and a
2.7% increase in consumption. The company employed approximately 8,400
full-time employees at June 30, 1999, down 4.2% from the 8,750 employees
a year earlier.
First half 1999 net income (excluding special items) was $99.8
million, or $1.08 per diluted share, an improvement of $.12, or 12.5%,
compared with pro forma net income (less special items) of $94.2
million, or $.96 per diluted share, in the first half of 1998. The
earnings per share growth was due to reduced worldwide television losses
(+$.06), enhanced earnings at community newspapers (+$.07, excluding
newsprint benefits), the impact of share repurchases (+$.07), and lower
newsprint expense (+$.06). These increases were partially offset by
reduced earnings in print publishing (-$.02 per share, excluding U.S.
Television, the newsprint price benefit and the severance charge),
lower earnings in electronic publishing (-$.10), and corporate expenses
(-$.02). Assuming a continued favorable economic environment, in the
second half the company anticipates to at least repeat the 12.5% gain
in first-half earnings per share, absent special items.
Operating income (excluding the restructuring charge) for the first
six months was $180.4 million, an increase of $5.8 million, or 3.3%,
compared with 1998's pro forma operating income of $174.6 million. The
improvement in operating income was chiefly due to advertising revenue
growth of $35.6 million, or 6.8%, driven by an advertising linage gain
of 4.3% at The Wall Street Journal. Also, community newspaper earnings
grew $13.4 million, or 55.2%, as operating expenses declined $7.1
million, or 5.6%, reflecting the cost reduction programs initiated in
mid 1998 and lower newsprint prices.
Revenues through June were $972.7 million, an increase of $35.9
million, or 3.8%, compared with pro forma revenues of $936.7 million in
the first half of 1998. Print publishing segment revenue was up $28.4
million, or 4.8%, electronic publishing revenue rose $1.3 million,
roughly 1%, and community newspapers grew $6.2 million, or 4.1%.
First half 1999 consolidated operating expenses (before the
restructuring charge) increased $30.1 million, or 4%, to $792.3 million,
with the drivers of growth similar to those in the second quarter
mentioned above. Print publishing expenses, excluding newsprint and
the severance charge, rose 5.8%. Electronic publishing expenses grew
11.1%. Consolidated newsprint expense decreased $8.8 million, or 10.7%,
reflecting an average 13.1% decline in newsprint prices and a 2.9%
increase in consumption.
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PAGE 10
SEGMENT DATA
The company's business and financial news and information operations
are reported in the following two segments: print publishing and
electronic publishing. The results of the company's Ottaway Newspapers
subsidiary, which publishes 19 daily newspapers and 15 weekly newspapers
in communities throughout the United States, are reported in the
community newspapers segment.
Print publishing includes the operations of The Wall Street Journal
and its international editions, Barron's and other periodicals, and U.S.
television operations. (Results of the company's international
television ventures are included in Equity in Losses of Associated
Companies.) Print publishing accounted for close to 64% of second
quarter and first half 1999 revenues. Approximately 9% of print
publishing revenues were earned by international publications.
Revenues, particularly advertising, for the print publications are
historically seasonal with the fourth quarter typically being the
strongest in terms of total volume followed by the second quarter, then
first and finally the third quarter.
Electronic publishing includes the operations of Dow Jones
Newswires, Dow Jones Indexes, Dow Jones Interactive, dowjones.com, and
The Wall Street Journal Interactive Edition. Electronic publishing and
community newspapers comprised approximately 20% and 16%, respectively,
of 1999's year-to-date revenues.
PRINT PUBLISHING
Print publishing operating income in the second quarter of 1999
(excluding the severance charge of $2.8 million) was $82.6 million, an
increase of $12.9 million, or 18.4%, from $69.7 million earned a year
earlier. The growth was mainly due to the strength of advertising in
The Wall Street Journal. The EBITDA margin was 29.5%, compared to 26.7%
a year earlier.
Revenues for the second quarter of $327 million increased $19.3
million, or 6.3%. Advertising revenue grew 9.4%, largely on the
strength of a 6.9% advertising linage gain at The Wall Street Journal.
U.S. television grew nearly 80% while International print revenues were
up $1.2 million, or 4.2%, driven by 14.3% growth at The Wall Street
Journal Europe whereas revenue for the Asian publications fell 1%.
Second quarter 1999 general advertising linage, which comprised
59.6% of total Wall Street Journal linage, climbed 8.8%, in part due to
increased advertising by the technology firms promoting server and
networking products. Other strong performers included the
telecommunications and consulting industries. Financial linage, which
made up 26.9% of total Journal linage, was up 7%, chiefly due to
strength in wholesale advertising. Classified, and other linage, which
constituted the remaining 13.5% of Journal linage, was down 1% from the
comparable period in 1998, primarily from softness in employment
advertising and tougher comparisons with last year's second quarter as
the Weekend edition, (first published on March 20, 1998), began to
attract additional real estate advertising. Barron's national
advertising pages were up 3.5%.
Circulation revenue in 1999's second quarter was down 2.9% from the
like period in 1998. Second quarter average circulation at the domestic
Wall Street Journal remained relatively flat with the expansion of bulk
distribution to the hotel and airline markets. Barron's average
circulation gained 3.7% to about 309,000. International print
circulation revenue decreased 5.3%, largely the result of weaker foreign
currencies against the U.S. dollar. Average combined circulation for
the Asian and European Journals was up 14.2% to 145,000.
<PAGE>
PAGE 11
Operating expenses, excluding the before mentioned severance charge,
climbed $6.5 million, or 2.7%, to $244.6 million in the second quarter
of 1999, reflecting higher compensation costs. Selling and marketing
costs also increased from last year with the introduction of the
Journal's new advertising promotion "Adventures in Capitalism" and
spending related to international expansion. In the second quarter of
1999, this segment benefited from a newsprint expense decrease of $5
million, or 14.5%. The average newsprint price per ton was $491, down
17.2%, while consumption increased 2.8% from 1998's second quarter.
Operating income in the first half of 1999 (before the severance
charge) was $135.1 million, an increase of $12.1 million, or 9.8%, from
operating income of $123 million earned a year earlier. The increase was
mainly due to the strength of advertising in the second quarter. The
EBITDA margin in the first half of 1999 was 26.5% compared to 25.1% a
year earlier.
Revenues for the six months ended June 30, 1999 increased $28.4
million, or 4.8%, from $589.4 million in 1998. Advertising revenue grew
6.5%, largely on a 4.3% advertising linage gain at The Wall Street
Journal and on the growth of U.S. television. International print
revenues were up $3.3 million, or 6.1%, driven by 18.1% growth in The
Wall Street Journal Europe. Asian operations were essentially flat.
First half 1999 general advertising linage at The Wall Street
Journal climbed 8.9%, in part due to increased advertising in
technology, telecommunications and utilities, hotels and resorts and
professional services. Financial linage was down about 4%, largely due
to a decline in security offers. Classified and other linage was up
2.9% from the comparable period in 1998, primarily from real estate
advertising. Barron's national advertising pages were down 3.9%.
Operating expenses, excluding the severance charge, climbed $16.3
million, or 3.5%, to $482.7 million in the first half of 1999. In the
first half of 1999, the company continued to benefit from reduced
newsprint prices with that expense declining $8.8 million, or 10.7%.
The average newsprint price per ton for the first half of 1999 was $519,
down 13.1%, while consumption increased 2.9%.
ELECTRONIC PUBLISHING
Second quarter 1999 operating income was $10.2 million, a decrease
of $8.2 million, or 44.6%, compared with 1998's second quarter.
Revenues rose 1.4% to $98.8 million. Operating expenses increased 12%
to $88.6 million.
Dow Jones Newswires revenue in the second quarter was $51.1 million,
down 1.2% from 1998 due to cancellation of Telerate-related terminals
in Europe and Asia somewhat offset by the start of new distribution
channels with Reuters and Bloomberg. At June 30, 1999, there were
304,000 newswires terminals, up 6.7% from 285,000 at the end of the
second quarter of 1998. Terminal growth in North America was 23,000,
somewhat offset by 4,000 cancellations overseas. Revenues in the U.S.
are affected by larger accounts which tend to contract for more
terminals and receive volume discounts. The 4,000 overseas terminals
that cancelled were yielding higher per-terminal revenue than those in
the U.S., resulting in a 20% decline in international revenue. The
company expects single digit revenue growth for the second half of 1999
due to lead times involved in establishing new clients. In addition,
the company continues to pursue other channels of distribution. In
July 1999, the company agreed to provide real-time Dow Jones Newswires
material to selected customers of DLJdirect Inc., an on-line brokerage
subsidiary of Donaldson, Lufkin & Jenrette, Inc.
<PAGE>
PAGE 12
Dow Jones Indexes revenue of $3.1 million increased 10.1% in the
second quarter of 1999. The average number of futures contracts on the
CBOT and options contracts on the CBOE each grew approximately 19% from
the second quarter of 1998. Volume in DIAMONDS, which trades on
American Stock Exchange, rose roughly 150% compared to the prior year's
second quarter. Assets based on Dow Jones Indexes grew to $58 billion
from $13.6 billion a year ago, primarily due to growth of the Dow Jones
STOXX partnership, launched in the third quarter of 1998.
The Wall Street Journal Interactive Edition revenue in the second
quarter of 1999 was $7.9 million (including dowjones.com), an increase
of $3.7 million, or 89%, compared with 1998's like period. Advertising
revenue more than doubled from last year's quarter and subscription
revenue grew roughly 54%, partly reflecting a 20% price increase for
non-print subscribers effective November, 1998. In part, subscription
growth reflects arrangements from new distribution channels, such as the
AT&T WorldNet Service which offers its customers the Interactive Journal
as part of its subscription package with the first month free followed
by normal rates. At June 30, 1999, subscribers to the Interactive
Journal totaled approximately 306,000, up 37.2% from a year ago.
Revenue from Dow Jones Interactive and other products decreased
$2 million, or 5.2%, to $36.7 million in the second quarter of 1999,
in part due to a contractual reduction in a third party licensing
contract and reduced revenue from IDD Enterprises. Excluding these and
other non-core businesses, Dow Jones Interactive revenues grew roughly
7% in the second quarter with double-digit growth coming from the
end-user corporate desktop component. The total user count for Dow
Jones Interactive stood at 749,000 at June 30, 1999, compared to 513,000
a year ago.
Second quarter operating expenses for electronic publishing
increased 12% to $88.6 million, in large part due to sales and marketing
costs associated with promoting interactive products and the global
expansion of both interactive and newswires businesses and increased
content (royalty) costs.
First half 1999 operating income for electronic publishing was $23.7
million, a decrease of $16 million, or 40.3%, from 1998. The decline
was chiefly due to an operating expense increase of $17.3 million, or
11.1%, resulting from expansion/promotion of products, global sales
efforts and additional content fees. Segment revenues of $196.3 million
were up $1 million from 1998's first half. Dow Jones Newswires revenues
of $102 million were flat with a year ago. Revenue at Dow Jones
Interactive and other products decreased $3.6 million, or 4.5%, to $74.8
million, largely from revenue drops from IDD Enterprises products and
third party licensing contracts. The Wall Street Journal Interactive
Edition revenue was $13.3 million, an increase of $5.5 million, or 72%,
compared with 1998's like period. Dow Jones Indexes' revenue increased
3.9%, to $6.3 million. The EBITDA margin for the overall segment through
June was 18.6%, down from 26.1% in 1998. The company expects the
electronic publishing segment to continue to focus on revenue and market
share growth that will yield EBITDA margins below last year for the
second half of 1999.
<PAGE>
PAGE 13
COMMUNITY NEWSPAPERS
Second quarter 1999 operating income was $23.6 million at the
community newspapers segment, up $7.5 million, or 47%, from the
comparable 1998 period. The operating margin increased to 27.9% from
19.7% in 1998 reflecting the full impact of cost reductions and
advertising rate increases, both implemented in the latter half of 1998.
Community newspapers revenue of $84.6 million advanced $3.2 million, or
3.9%. Rate increases drove a 4.5% gain in advertising revenue from the
comparable period in 1998. Advertising linage was down 1.3% due to a
decline in display ads resulting from store closings and 1998 benefiting
from advertising related to one-time bank mergers.
Second quarter 1999 circulation revenue grew 3.2% from the like
period last year. Operating expenses were $61 million, down $4.3
million, or 6.6%, reflecting a decrease in compensation expense
resulting from the voluntary separation program announced at the end of
the second quarter of 1998 and a 16% drop in newsprint expense.
First half 1999 operating income was $37.6 million, up $13.4
million, or 55%, from the like 1998 period. The operating margin
increased to 23.7% from 15.9% in 1999 reflecting the cost cutting
measures implemented during 1998. The EBITDA margin rose to 29.2% from
21.6% in 1998. The company expects to exceed its long-term EBITDA
margin target of 27% for community newspapers, for all of 1999.
Community newspapers revenue of $158.5 million advanced $6.2
million, or 4.1%, from 1998's first half. Advertising revenue increased
5.1% to $112.6 million, from a year-earlier and circulation revenue grew
2.6%. For the first six months, operating expenses were down $7.1
million to $120.9 million, mostly due to the separation program and
lower newsprint expense.
OTHER INCOME/DEDUCTIONS
Net interest income in the second quarter of 1999 and 1998 was $0.7
million and $0.4 million, respectively. Year-to-date net interest
income in 1999 was $1.9 million versus net interest expense of $1.5
million in 1998. Long-term debt was $149.9 million at June 30, 1999
and 1998 and $234.1 million at December 31, 1997.
The company's share of losses from associated companies in the
second quarter was $6.9 million in 1999 compared with $3.6 million a
year earlier. The wider loss resulted from reduced earnings at the
company's newsprint mill affiliate (due to lower newsprint prices),
SmartMoney (due to development costs for smartmoney.com) and other
affiliates, partially offset by a 12.2% improvement in international
television. First half 1999 equity losses were $10.6 million versus
$9.5 million in 1998.
In the first quarter of 1999, the company reported a pretax gain of
$10.6 million from the sale of a portion of its holdings in OptiMark
Technologies, Inc. First quarter 1998 included a pretax gain of $15.4
million from the sales of the company's interests in WBIS+ TV and
Mediatex.
On July 7, 1999, the company completed the sale of its interest in
United States Satellite Broadcasting, Inc. (USSB) to Hughes Electronics,
a General Motors subsidiary, receiving proceeds of $79.4 million, which
is included in other investments as a current asset. An after-tax gain
from the sale of $57.3 million, or $.62 per diluted share, will be
recorded in the third quarter of 1999.
<PAGE>
PAGE 14
INCOME TAXES
The effective income tax rates for the second quarter and first half
of 1999 were 41.9% and 39.6%, compared with 42% and 41.4% in 1998,
respectively. The lower effective tax rate in the first half of 1999
resulted from the first quarter 1999 tax-free gain on the sale of
OptiMark Technologies, Inc. shares. Excluding Telerate in 1998 and the
effect of investment gains in each year, the first six months effective
tax rate would have been 42% in 1999 and 42.1% in 1998.
At June 30, 1999, the company had available approximately $565
million of capital loss carryforwards (a deferred tax asset of $212
million) which was fully reserved through a valuation allowance
(resulting from the sale of Telerate in May 1998). After the third
quarter sale of USSB shares, capital loss carryforwards available were
approximately $510 million.
FINANCIAL POSITION AND CASH FLOW
In the first half of 1999, the company repurchased 1.54 million
shares of its common stock at an aggregate price of $70.5 million. The
company issued in the second quarter 1.3 million put options (puts).
At June 30, 1999 there were 2 million puts outstanding which could
obligate the company to repurchase up to $94.6 million of its common
stock (net of put premiums) through June 2000. In 1998 the company's
board of directors authorized the company to repurchase up to $800
million of Dow Jones' common stock over the subsequent three years. At
June 30, 1999, approximately $340 million of the board authorization
was available for stock repurchases, after reserving for the exercise
of puts.
In the first half of 1999, the company funded the repurchase of its
common stock for $70.5 million, capital expenditures of $98 million,
(including $33 million for The Wall Street Journal color expansion
project), paid dividends of $44 million and funded $24 million in
various investments. Cash and cash equivalents, which include
highly-liquid investments with a maturity of three months or less, were
$26.7 million at June 30, 1999 compared to $168.8 million a year earlier.
The company has guaranteed payment under certain circumstances of
certain annual minimum payments for data acquired by Telerate (now
wholly-owned by Bridge Information Systems, Inc.) from Cantor Fitzgerald
Securities and Market Data Corporation under contracts entered into
during the period when Telerate was a subsidiary of the company. The
annual minimum payments average approximately $50 million per year
through October 2006. Bridge has agreed to indemnify the company if
the company is required to make any payments under the guarantee.
NEW CREDIT FACILITY
In June 1999, the company established a one year $400 million credit
facility with a consortium of banks. The company, through the credit
facility, will have available funds through various loan arrangements
with variable interest rates which will be based on the type of loan
and the current market rates at the time the loans are requested. The
credit facility replaces another $400 million credit facility which was
to expire in November 1999. At June 30, 1999, there were no borrowings
under either facility. The company also uses commercial paper from time
to time for short-term borrowings.
<PAGE>
PAGE 15
NEW BUSINESS INITIATIVES:
DOW JONES REUTERS BUSINESS INTERACTIVE LLC
In June 1999, Reuters Group Plc and Dow Jones &
Company announced the formation of a joint venture (effective July 1,
1999), Dow Jones Reuters Business Interactive LLC, each with 50%
ownership. The venture is expected to expand upon both partners'
existing interactive businesses and to develop an integrated (combining
both Dow Jones and Reuters products) web-based service to provide
corporate news, information and research data; targeting users of the
corporate desktops, traditional librarian and professional researcher
markets. The new service will include access to The Wall Street Journal
and both Reuters and Dow Jones Newswires, from interfaces in 11
languages and content in nine others. Also, it will target its
penetration into developed markets in North America and Western Europe
and emerging markets in Asia, Eastern Europe and Latin America. The
company expects this new integrated service to be available in the
middle of next year. Prior to the availability of the new service,
Dow Jones Reuters Business Interactive LLC will provide proprietary
content from Dow Jones and Reuters to its full customer base.
THE WALL STREET JOURNAL SUNDAY
In April 1999, the company announced a new
initiative to launch The Wall Street Journal Sunday pages to commence
in the third quarter of 1999. The company expects total combined
circulation will be just over 4.3 million. The package of four pages,
roughly half news, half advertising, will be published once a week in
the business sections of partner newspapers. The participating
newspapers will initially include such publications as The Denver Post,
The Sun-Sentinel of Fort Lauderdale, Florida, The Minneapolis Star
Tribune, The Orange County Register, The St. Petersburg Times, the
Milwaukee Journal-Sentinel, the New Orleans Times-Picayune, the Raleigh
News & Observer, the St. Louis Post-Dispatch and The Sacramento Bee.
The content will focus on personal finance and careers. The company
will receive a content fee and share in the advertising revenues.
OTHER
In May 1999, Dow Jones launched a new free vertical portal Web site,
dowjones.com. The new Internet site offers business information and
research services, targeting a broad group of business professionals.
In April 1999, Dow Jones, the Financial Times and Independent Media
agreed to launch later this year Vedomosti, or The Record, a daily
Russian business newspaper.
In June 1999, with an effective date of January 1, 2000, von
Holtzbrink group and Dow Jones agreed to swap minority stakes in The
Wall Street Journal Europe and Handelsblatt, Germany's leading business
newspaper. Under the agreement, Dow Jones will own 22% of Handelsblatt,
while von Holtzbrink group will own 49% of the European Journal
including Dow Jones' minority interests in a Czech business publisher
(Economia) and German financial news agency (VWD).
<PAGE>
PAGE 16
YEAR 2000
The company has completed its assessment of its Year 2000 problem.
The company expects its efforts to modify existing software and the
replacement of certain systems will be completed without interrupting
ongoing operations. The company estimates operating costs over the
1997-1999 period to modify its systems for the Year 2000 issue will
range between $16 million and $18 million. Through June 30, 1999 the
company's expenses were approximately $14.6 million.
In 1996, Dow Jones established a project team responsible for
identifying and resolving Year 2000 issues. These efforts include, but
are not limited to, identification and review of internal operating
systems and applications, and customer products and services, as well
as formal discussions with information providers and other key suppliers
to the business.
The company has identified existing computer applications and
categorized them as: (1) applications to be modified, (2) applications
to be replaced by Year 2000 compliant systems, and (3) applications
initially reported as Year 2000 compliant that need to be tested to
confirm their readiness. Through June 1999, approximately 95% of
applications requiring modification have been certified as Year 2000
compliant, roughly 94% of replacement applications have been certified
and about 95% of initially reported Year 2000 compliant applications
have been confirmed.
The company started contingency planning in the fourth quarter of
1998. The primary focus is to plan for unprepared providers of goods
and services, the potential for numerous simultaneous outages, facility
problems and unforeseen internal and external failures of computer
applications and hardware. As part of this effort the company is
ensuring the availability of employees and others at year-end. This
contingency planning project is specific to potential Year 2000 related
issues and includes; (1) program definition, (2) business risk
assessments, (3) strategy development, (4) business continuity and
readiness plan development for mission critical processes, (5) testing
readiness plans and (6) developing and implementing event response
procedures and a team to monitor and address any Year 2000 related
failures.
At June 30, 1999, the readiness plans for essentially all mission
critical processes have been developed with the remainder scheduled for
completion in July 1999. These plans will be tested and any proactive
measures will be implemented during the second half of 1999. An event
response team will be in place during the remainder of this year and
will continue into the Year 2000.
While the company expects its Year 2000 efforts to be successful,
if the modifications and replaced systems are not made compliant in a
timely manner, it could result in a material effect on the company.
Additionally, the company's products and services as well as the tools
that Dow Jones uses to conduct its Year 2000 evaluation are dependent on
technological components, equipment, software that were developed by
third parties and that may not be year 2000 compliant. Failure of such
third party components, equipment or software to operate properly with
regard to the Year 2000 could interrupt ongoing operations or require
the company to incur unanticipated expenses to remedy any problems,
which could have a material adverse effect on the company's business and
operating results.
<PAGE>
PAGE 17
INFORMATION RELATING TO FORWARD-LOOKING STATEMENTS
Management's Discussion and Analysis and other sections of this Form
10-Q include forward-looking statements that reflect the company's
current expectations or beliefs concerning future results and events.
The words "expects," "intends," "believes," "anticipates," "likely,"
"will," and similar expressions identify forward-looking statements.
These forward-looking statements are subject to certain risks and
uncertainties which could cause actual results and events to differ
materially from those anticipated in the forward-looking statements.
Factors that might cause such a difference include, but are not limited
to, global economic and stock market conditions and their impact on
advertising sales and sales of the company's products and services; the
inability to expand newspaper page capacity and/or production and
service capacity for electronic publishing products on a timely basis to
satisfy customer demands; the extent to which the company is able to
achieve increased revenues/earnings from distribution of its newswire
services; the extent to which the company is able to achieve and
maintain a more diversified advertising base for its print publications;
the size of the global corporate desktop market for on-line business
information and research services and competition in that market; the
extent to which the company is able to achieve and maintain advertising
revenues from its free services on the Internet, cost of newsprint and
labor; rapid technological changes and frequent new product
introductions prevalent in electronic publishing; product obsolescence
due to advances in technology and shifts in market demand; any damage to
or technical failure of the company's computer infrastructure or software
that causes interruptions of operations; increased competition in the
markets for financial news and information and advertising resulting
from the rise in popularity of the Internet, financial television
programming and other news media; business conditions (growth or
consolidation)in the financial service industry; the company's ability
to negotiate collective bargaining agreements with its labor unions
without work interruptions: adverse verdicts in legal proceedings,
including libel actions; risks associated with the development of
television channels in competitive foreign markets, including the
ability to produce or obtain desired programming, to sell advertising
time at desired rates, to achieve sufficient distribution and to attract
audiences; risks associated with foreign operations, including currency
and political risks; the cost of resolving the company's Year 2000
software issues or untimely resolution of its Year 2000 issues that
results in business interruption or shutdown, financial loss, reputation
loss, and/or legal liability; and such other risk factors as may have
been or may be included from time to time in the company's reports filed
with the Securities and Exchange Commission.
<PAGE>
PAGE 18
ITEM 5: OTHER INFORMATION
<TABLE>
<CAPTION>
PRO FORMA CONDENSED CONSOLIDATED
STATEMENTS OF INCOME *
Dow Jones & Company, Inc.
Quarters Ended Six Months Ended
June 30 June 30
=============================================================================
(in thousands, except
share amounts) 1999 1998 1999 1998
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C>
REVENUES:
Advertising $302,609 $277,043 $557,336 $521,709
Information services 94,395 95,379 189,302 191,263
Circulation and other 113,567 114,317 226,015 223,749
-----------------------------------------------------------------------------
Total revenues 510,571 486,739 972,653 936,721
-----------------------------------------------------------------------------
EXPENSES:
News, operations and
development 134,264 129,589 262,445 252,241
Selling, administrative
and general 177,219 163,873 346,880 324,160
Newsprint 36,645 43,028 74,040 82,883
Second class postage
and carrier delivery 30,032 29,639 59,047 57,907
Depreciation and
amortization 24,844 22,535 49,860 44,961
Restructuring 2,755 2,755
-----------------------------------------------------------------------------
Operating expenses 405,759 388,664 795,027 762,152
-----------------------------------------------------------------------------
Operating income 104,812 98,075 177,626 174,569
OTHER INCOME (DEDUCTIONS):
Investment income 1,896 1,795 4,771 2,096
Interest expense (1,242) (1,351) (2,823) (3,597)
Equity in losses of
associated companies (6,935) (3,618) (10,626) (9,505)
Gain on disposition of
businesses and investments 10,618 15,390
Other, net (126) (469) 324 (918)
-----------------------------------------------------------------------------
Income before income taxes 98,405 94,432 179,890 178,035
Income taxes 41,193 39,686 71,156 73,687
-----------------------------------------------------------------------------
NET INCOME $ 57,212 $ 54,746 $108,734 $104,348
=============================================================================
NET INCOME PER SHARE:
- Basic $.63 $.57 $1.19 $1.08
- Diluted .62 .56 1.18 1.07
Weighted-average shares
outstanding:
- Basic 90,699 96,476 91,063 96,610
- Diluted 91,676 97,677 91,996 97,920
=============================================================================
* Pro forma statements of income exclude Telerate results of operations and
loss on sale. Dow Jones completed the sale of Telerate on May 29, 1998.
</TABLE>
<PAGE>
PAGE 19
ITEM 5: OTHER INFORMATION (cont.)
<TABLE>
<CAPTION>
SUPPLEMENTAL PRO FORMA REVENUE SEGMENT INFORMATION *
Dow Jones & Company, Inc.
================================================================================
Quarters Ended Six Months Ended
June 30 June 30
(in thousands)) 1999 1998 1999 1998
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C>
PRINT PUBLISHING:
U.S. Publications:
Advertising $218,087 $198,692 $403,718 $379,732
Circulation and other 79,209 80,506 157,833 156,661
International Publications:
Advertising 18,823 17,804 33,828 31,074
Circulation and other 11,073 10,883 22,421 21,922
------- ------- ------- -------
Total pro forma revenues 327,192 307,885 617,800 589,389
ELECTRONIC PUBLISHING:
Dow Jones Newswires 51,103 51,736 101,981 102,894
Dow Jones Indexes 3,063 2,783 6,304 6,069
Dow Jones Interactive
and other 36,746 38,774 74,782 78,365
The Wall Street Journal
Interactive Edition 7,874 4,171 13,256 7,717
------- ------- ------- -------
Total pro forma revenues 98,786 97,464 196,323 195,045
COMMUNITY NEWSPAPERS:
Advertising 61,120 58,476 112,609 107,163
Circulation and other 23,473 22,914 45,921 45,124
------- ------- ------- -------
Total pro forma revenues 84,593 81,390 158,530 152,287
Total pro forma segment
revenues $510,571 $486,739 $972,653 $936,721
=============================================================================
* Pro forma statements of income exclude Telerate results of operations and
loss on sale. Dow Jones completed the sale of Telerate on May 29, 1998.
</TABLE>
<PAGE>
PAGE 20
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits filed:
Exhibit
Number Document
- ------- --------
10.15 The Restated Certificate of Incorporation of the company, as
amended April 22, 1988 and April 25, 1989.
10.16 The By-laws of the company restated as of May 17, 1989.
10.17 The Restated Credit Facility as of June 29, 1999.
* 27 Financial Data Schedule
* Securities and Exchange Commission and New York Stock Exchange
copies only.
(b) Reports on Form 8-K:
No reports on Form 8-K have been filed during the period for which this
report is filed.
<PAGE>
PAGE 21
SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
DOW JONES & COMPANY, INC.
-------------------------
(Registrant)
Date: August 11, 1999 By: /s/ Lawrence K. Kinsella
----------------------
Comptroller
(Chief Accounting Officer)
<PAGE>
EXHIBIT 10.15
CERTIFICATE OF INCORPORATION
OF
DOW JONES & COMPANY, INC.
(As amended April 22, 1988 and April 25, 1989)
Dow Jones & Company, Inc., a Delaware corporation, hereby certifies as
follows:
FIRST. The name of the corporation is Dow Jones & Company, Inc.
SECOND. Its registered office in the State of Delaware is located
at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801. The name and address of its registered agent is The Corporation
Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware 19801.
THIRD. The nature of the business, or objects or purposes to be
transacted, promoted or carried on, are:
a) To gather, collect, purchase, analyze, prepare, edit, publish
and distribute by newspapers, magazines, books, periodicals and other
publications, by ticker, by news bulletins and by other methods, news,
comment and quotations of all kinds and descriptions;
(b) To edit, publish, print, conduct, and circulate, or otherwise
deal with any newspapers, news services, magazines, books, periodicals,
bulletins and other publications, and news, comment and quotations of
all kinds and descriptions, and in general, to carry on the business of
collecting, editing, transmitting, publishing and disseminating news,
comment and opinion in any form or manner;
(c) To purchase or otherwise acquire and to sell, either as
principal or agent, newspapers, news services, magazines, books,
periodicals and other publications of all kinds and descriptions,
stationery and stationer's supplies, and, generally, to carry on the
business of wholesale and retail book sellers and stationers;
(d) To design, manufacture, buy, sell, lease, operate, maintain,
service and deal in and with news tickers, stock, bond and other tickers,
and other receiving, transmitting and recording instruments, printing,
engraving and lithographing machinery, and other machines, machinery and
apparatus of all kinds and descriptions for receiving, transmitting,
publishing and recording news, comment and quotations;
(e) To design, manufacture, buy, sell, lease, operate, maintain,
service and deal in and with all kinds of machines, machinery and
equipment;
(f) To acquire, hold, use, sell, assign, lease, grant licenses in
respect of, and mortgage or otherwise dispose of, letters patent of the
United States or any foreign country, patent rights, licenses and
privileges, inventions, improvements and processes, copyrights,
trademarks and trade names, relating to or useful in connection with any
business of the corporation;
<PAGE>
(g) To carry on a general advertising and publicity business in
all its branches, either as principal or agent, and to acquire and
operate franchises or privileges for the performance of the purposes of
the corporations;
(h) To conduct, and carry on the business of a printer, publisher,
lithographer, stereotyper, electrotyper, photographic printer, engraver,
bookbinder and stationer, including the printing and publication of
newspapers, news services, magazines, news bulletins, stock, bond and
other quotations and news, books, pamphlets, periodicals, posters,
circulars, envelopes, bill and letterheads, cards, tags, labels,
commercial, financial and law blanks and forms of every description; and
in general, to carry on and conduct the business of a printer and
publisher;
(i) To manufacture, purchase or otherwise acquire, invest in, own,
mortgage, pledge, sell, assign and transfer or otherwise dispose of,
trade in, deal in and deal with goods, wares and merchandise and personal
property of every class and descriptions;
(j) To purchase, buy, sell, exchange, own, hold, maintain, work,
develop, convey, mortgage, lease, let, hire and otherwise acquire, dispose
of or deal in and with real estate and personal property, wheresoever
situated, in any part of the world, and without limit as to the amount or
value thereof, and any interest or right or rights therein, and to improve
or deal with such property in any way permitted by law;
(k) To borrow or raise moneys for any of the purposes of the
corporation and, from time to time, without limit as to amount, to draw,
make, accept, endorse, execute and issue promissory notes, drafts, bills
of exchange, warrants, bonds, debentures and other negotiable or non-
negotiable instruments and evidences of indebtedness, and to secure the
payment of any thereof and of the interest thereon by mortgage upon or
pledge, conveyance or assignment in trust of the whole or any part of the
property of the corporation, whether at the time owned or thereafter
acquired, and to sell, pledge or otherwise dispose of such bonds or other
obligations of the corporation for its corporate purposes, and to confer
upon the holders of any of its bonds or other obligations such powers,
rights and privileges as from time to time may be deemed advisable by the
board of directors, to the extent permitted by law;
(l) To acquire by purchase, subscription or otherwise, and to
receive, hold, own, guarantee, sell, assign, exchange, transfer, mortgage,
pledge or otherwise dispose of or deal in and with any of the shares of
the capital stock, or any voting trust certificates in respect of the
shares of capital stock, scrip, warrants, rights, bonds, debentures,
notes, trust receipts, and other securities, obligations, choses in action
and evidences of indebtedness or interest issued or created by any
corporations, joint stock companies, syndicates, associations, firms,
trusts or persons, public or private, or by the government of the United
States of America, or by any foreign government, or by any state,
territory, province, municipality or other political subdivision or by any
governmental agency, and as owner thereof to possess and exercise all of
the rights, powers and privileges of ownership, including the right to
execute consents and vote thereon, and to do any and all acts and things
<PAGE>
necessary or advisable for the preservation, protection, improvement and
enhancement in value thereof.
(m) To lend and advance money and extend credit to any person,
firm or corporation, either with or without security;
(n) To purchase or otherwise acquire, hold, cancer, reissue, sell,
pledge, exchange, transfer or otherwise deal in its own securities,
including shares of its capital stock of any class, from time to time and
to such extent and in such manner and upon such terms as the board of
directors shall determine; provided it shall not use its funds or property
for the purchase of its own shares of capital stock when such use would
cause any impairment of its capital except as otherwise permitted by law,
and provided further that shares of its own capital stock belonging to it
shall not be voted upon directly or indirectly;
(o) To acquire, and pay for in cash, stock or bonds of this
corporation or otherwise, the good will, rights, assets and property, and
to undertake or assume the whole or any part of the obligations or
liabilities of any person, firm, association, trust or corporations;
(p) To apply for, purchase, or acquire by assignment, transfer or
otherwise, and to exercise, carry out and enjoy any and all rights under
any statute, ordinance, order, license, power, authority, franchise,
concession or privilege which any government or authority, or any other
corporate or public body, may be empowered to enact, make or grant, and to
pay for, aid in and contribute toward carrying the same into effect, and
to appropriate any of the corporation's stock, bonds, debentures, notes
and other securities and assets to defray the necessary costs, charges and
expenses thereof,
(q) To enter into, make and perform contracts of every kind and
description with any person, firm, association, trust, corporation,
municipality, county, state, body politic or government or colony or
dependency thereof;
(r) To consolidate with or merge into any one or more other
corporations whenever and however organized;
(s) To have one or more offices and to carry on all or any of its
operations and business in any of the states, districts, territories or
possessions of the United States, and in any and all foreign countries,
subject to the laws of such state, district, territory, possession or
country;
(t) In general, to carry on any other business in connection with
the foregoing, and to have and exercise all the powers conferred by the
laws of Delaware upon corporations formed under the General Corporation
Law of the State of Delaware.
The objects and purposes specified in the foregoing clauses shall, except
where otherwise expressed, be in nowise limited or restricted by reference
to, or inference from, the terms of any other clause in this certificate
of incorporation, but the objects and purposes specified in each of the
foregoing clauses of this Article shall be regarded as independent objects
and purposes, and the enumeration of specific objects and purposes shall
<PAGE>
not be construed to restrict in any manner the general objects and
purposes of the corporation, nor shall the expression of one thing be
deemed to exclude another, although it be of like nature. The
enumeration of objects and purposes herein shall not be deemed to
exclude or in any way limit by inference any powers, objects or purposes
which the corporation is empowered to exercise, whether expressly by
force of the laws of Delaware, now or hereafter in effect, or impliedly
by any reasonable construction of said laws.
FOURTH. The total number of shares of all classes which the corporation
shall have authority to issue is One Hundred Sixty Million (160,000,000),
consisting of One Hundred Thirty-five Million (135,000,000) shares of
common stock of the par value of $1 per share (hereinafter called "Common
Stock") and twenty-five Million (25,000,000) shares of class B common
stock of the par value of $1 per share (hereinafter called "Class B Common
Stock").
1. (a) At every meeting of the stockholders every holder of Common
Stock shall be entitled to one (1) vote in person or by proxy for each
share of Common Stock standing in his name on the stock transfer records
of the corporation and every holder of Class B Common Stock shall be
entitled to ten (10) votes in person or by proxy for each share of Class
B Common Stock standing in his name on the stock transfer records of the
corporation, provided that at every meeting of the stockholders called
for the election of directors the holders of Common Stock, voting
separately as a class, shall be entitled to elect one-third (1/3) of the
number of directors to be elected at such meeting, and if one-third (1/3)
of such number of directors is not a whole number, then the holders of
Common Stock, voting separately as a class, shall be entitled to elect
the next higher whole number of directors to be elected at such meeting,
and the holders of Class B Common Stock shall have no voting rights with
respect to the election of such directors. Directors elected by the
holders of Common Stock, voting separately as a class, may be removed,
with or without cause, only by a vote of the holders of a majority of the
shares of Common Stock then outstanding, voting separately as a class.
If, during the interval between annual meetings of stockholders for the
election of directors, the number of directors who have been elected by
the holders of Common Stock voting separately as a class shall, by reason
of resignation, death or removal, be reduced, the vacancy or vacancies in
the directors elected by the holders of Common Stock voting separately as
a class shall be filled by a majority vote of the remaining directors then
in office, even if less than a quorum, and if not so filled within forty
days after the creation of such vacancy or vacancies, the Secretary of the
corporation shall call a special meeting of the holders of Common Stock
and such vacancy or vacancies shall be filled at such special meeting.
Any director elected to fill any such vacancy by the remaining directors
then in office may be removed from office by vote of the holders of a
majority of the shares of Common Stock voting separately as a class.
(b) Every reference in this certificate of incorporation to a
minority or other proportion of shares of stock shall refer to such
majority or other proportion of the votes of such shares of stock.
2. (a) No person holding shares of Class B Common Stock
(hereinafter called a "Class B Holder") may transfer, and the corporation
shall not register the transfer of, such shares of Class B Common Stock,
whether by
<PAGE>
sale, assignment, gift, bequest, appointment or otherwise, except to a
Permitted Transferee of such Class B Holder, which term shall have the
following meanings:
(i) In the case of a Class B Holder who is a natural person holding
record and beneficial ownership of the shares of Class B Common Stock in
question, "Permitted Transferee" means (A) the spouse of such Class B
Holder, (B) a lineal descendant of a great grandparent of such Class B
Holder, (C) the trustee of a trust (including a voting trust) for the
benefit of one or more of such Class B Holder, other lineal descendants
of a great grandparent of such Class B Holder, the spouse of such Class
B Holder, and all organization contributions to which are deductible for
federal income, estate or gift tax purposes (hereinafter called a
"Charitable Organization"), and for the benefit of no other person,
provided that such trust may grant a general or special power of
appointment to such spouse and may permit trust assets to be used to pay
taxes, legacies and other obligations of the trust or the estate of such
Class B Holder payable by reason of the death of such Class B Holder and
provided that such trust must prohibit transfer of shares of Class B
Common Stock to persons other than Permitted transferees as defined in
clause (ii) below, (D) a Charitable Organization established by such
Class B Holder, such Class B Holder's spouse or a lineal descendant of
a great grandparent of such Class Holder, (E) a corporation all of the
outstanding capital stock of which is owned by, or a partnership all of
the partners of which are, one or more of such Class B Holder, other
lineal descendants of a great grandparent of such Class B Holder, and
the spouse of such Class B Holder, provided that if any share of capital
stock of such a corporation (or of any survivor of a merger or
consolidation of such a corporation), or any partnership interest in such
a partnership, is acquired by any person who is not within such class of
persons, all shares of Class B Common Stock then held by such corporation
or partnership, as the case may be, shall be deemed without further act
on anyone's part to be converted into shares of Common Stock, and stock
certificates formerly representing such shares of Class B Common Stock
shall thereupon and thereafter be deemed to represent the like number
of shares of Common Stock.
(ii) In the case of a Class B Holder holding the shares of Class B
Common Stock in question as trustee pursuant to a trust other than a trust
described in clause (iii) below, "Permitted Transferee" means (A) the
person who established such trust, and (B) a Permitted Transferee of such
person determined pursuant to clause (i) above.
(iii) In the case of a Class B Holder holding the shares of Class B
Common Stock in question as trustee pursuant to a trust which was
irrevocable on the record date (hereinafter in this paragraph 2 called
the "Record Date") for determining the persons to whom the Class B Common
Stock is first distributed by the corporation, "Permitted Transferee"
means any person to whom or for whose benefit principal may be distributed
either (during or at the end of the term of such trust whether by power of
appointment or otherwise.
<PAGE>
(iv) In the case of a Class B Holder holding record (but not
beneficial) ownership of the shares of Class B Common Stock in question
as nominee for the person who was the beneficial owner thereof on the
Record Date, "Permitted Transferee" means such beneficial owner and a
Permitted Transferee of such beneficial owner determined pursuant to
clauses (i), (ii), (iii), (v) or (vi) hereof, as the case may be.
(v) In the else of a Class B Holder which is a partnership holding
record and beneficial ownership of the shares of Class B Common Stock in
question, "Permitted Transferee" means any partner of such partnership.
(vi) In the case of a Class B Holder which is a corporation (other
than a Charitable Organization described in subclause (D) of clause (i)
above) holding record and beneficial ownership of the shares of Class B
Common Stock in question, "Permitted Transferee" means any stockholder
of such corporation receiving shares of Class B Common Stock through a
dividend or through a distribution made upon liquidation of such
corporation, and the survivor of a merger or consolidation of such
corporation.
(vii) In the case of a Class B Holder which is the estate of a
deceased Class B Holder, or which is the estate of a bankrupt or
insolvent Class B Holder, and provided such deceased, bankrupt or
insolvent Class B Holder, as the case may be, held record and beneficial
ownership of the shares of Class B Common Stock in question, "Permitted
Transferee" means a Permitted Transferee of such deceased, bankrupt or
insolvent Class B Holder as determined pursuant to clauses (i), (v) or
(vi) above, as the case may be.
(b) Notwithstanding anything to the contrary set forth herein, any
Class B Holder may pledge such Holder's shares of Class B Common Stock to
a pledgee pursuant to a bona fide pledge of such shares as collateral
security for indebtedness due to the pledgee, provided that such shares
shall not be transferred to or registered in the name of the pledgee and
shall remain subject to the provisions of this paragraph 2. In the event
of foreclosure or other similar action by the pledgee, such pledged shares
of Class B Common Stock may only be transferred to a Permitted Transferee
of the pledgor or converted into shares of Common Stock, as the pledgee
may elect.
(c) For purposes of this paragraph 2:
(i) The relationship of any person that is derived by or through
legal adoption shall be considered a natural one.
(ii) Each joint owner of shares of Class B Common Stock shall
be considered a "Class B Holder" of such shares.
(iii) A minor for whom shares of Class B Common Stock are held
pursuant to a Uniform Gifts to Minors Act or similar law shall be
considered a Class B Holder of such shares.
<PAGE>
(iv) Unless otherwise specified, the term "person" means both
natural persons and legal entities.
(d) Any purported transfer of shares of Class B Common Stock not
permitted hereunder shall be void and of no effect and the purported
transferee shall have no rights as a stockholder of the corporation and
no other rights against or with respect to the corporation. The
corporation may, as a condition to the transfer or the registration of
transfer of shares of Class B Common Stock to a purported Permitted
Transferee, require the furnishing of such affidavits or other proof as
it deems necessary to establish that such transferee is a Permitted
Transferee. The corporation may note on the certificates for shares of
Class B Common Stock the restrictions of transfer andregistration of
transfer imposed I)v this paragraph 2.
(e) When the number of outstanding shares of Class B Common Stock
falls below Twelve Million (12,000,000), or such higher number as results
from adjustments for stock splits or stock dividends, the outstanding
shares of Class B Common Stock shall be deemed without further act oil
anyone's part to be converted into shares of Common Stock, and stock
certificates formerly representing outstanding shares of Class B Common
Stock shall thereupon and thereafter be deemed to represent the like
number of shares of Common Stock.
3.(a) Each share of Class B Common Stock may at any time be
converted into one (1) fully paid and non-assessable share of Common
Stock. Such right shall be exercised by the surrender of the certificate
representing such share of Class B Common Stock to be converted to the
corporation at any time during normal business hours at the principal
executive offices of the corporation, or if all agent for the
registration of transfer of shares of Class B Common Stock is then duly
appointed and acting (said agent being hereinafter called the "Transfer
Agent") then at the office of the Transfer Agent, accompanied by a
written notice of the election by the holder thereof to convert and
(if so required by the corporation or the Transfer Agent) by instruments
of transfer, in form satisfactory to the corporation and to the Transfer
Agent, duly executed by such holder or his duly authorized attorney, and
transfer tax stamps or funds therefor, if required pursuant to
subparagraph (e) below.
(b) As promptly as practicable after the surrender for conversion
of a certificate representing shares of Class B Common Stock in the
manner provided in subparagraph (a) above and the payment in cash of any
amount required by the provisions of subparagraphs (a) and (e), the
corporation will deliver or cause to be delivered at the office of the
Transfer Agent to or upon the written order of the holder of such
certificate, a certificate or certificates representing the number of
full shares of Common Stock issuable upon such conversion, issued in such
name or names as such holder may direct. Such conversion shall be deemed
to have been made immediately prior to the close of business on the date
of the surrender of the certificate representing shares of Class B Common
Stock, and all rights of the holder of such shares as such holder shall
cease at such time and the person or persons in whose name or names the
certificate or certificates representing the shares of Common Stock are
to be issued shall be treated for all purposes as having become the
record holder or holders of such shares of Common Stock at such time;
provided, however,
<PAGE>
that any such surrender and payment on any date when the stock transfer
books of the corporation shall be closed shall constitute the person or
persons in whose name or names the certificate or certificates
representing shares of Common Stock are to be issued as the record
holder or holders thereof for all purposes immediately prior to the close
of business on the next succeeding day on which such stock transfer books
are open.
(c) No adjustments in respect of dividends shall be made upon the
conversion of any share of Class B Common Stock, provided, however, that
if a share shall be converted subsequent to the record date for the
payment of a dividend or other distribution on shares of Class B Common
Stock but prior to such payment, the registered holder of such share at
the close of business on such record date shall be entitled to receive
the dividend or other distribution payable on such share on such date
notwithstanding the conversion thereof or corporation's default in
payment of the dividend due on such date.
(d) The corporation covenants that it will at all times reserve
and keep available, solely for the purpose of issue upon conversion of
the outstanding shares of Class B Common Stock, such number of shares
of Common Stock as shall be issuable upon the conversion of all such
outstanding shares, provided, that nothing contained herein shall be
construed to preclude the corporation from satisfying its obligations in
respect of the conversion of the outstanding shares of Class B Common
Stock by delivery of purchased shares of Common Stock which are held in
the treasury of the corporation. The corporation covenants that if any
shares of Common Stock, required to be reserved for purposes of
conversion hereunder, require registration with or approval of any
governmental authority under any federal or state 1aw before such shares
of Common Stock may be issued upon conversion, the corporation will cause
such shares to be duly registered or approved, as the case may be. The
corporation will endeavor to list the shares of Common Stock required to
be delivered upon conversion prior to such delivery upon each national
securities exchange upon which tile outstanding Common Stock is listed at
the time of such delivery. The corporation covenants that all shares of
Common Stock which shall be issued upon conversion of the shares of Class
B Common Stock, will, upon issue, be fully paid and non-assessable and
not subject to any preemptive rights.
(e) The issuance of certificates for shares of Common Stock upon
conversion of shares of Class B Common Stock shall be made without charge
for any stamp or other similar tax in respect of such issuance. However,
if any such certificate is to be issued in a name other than that of the
holder of the share or shares of Class B Common Stock converted, tile
person or persons requesting the issuance thereof shall pay to the
corporation the amount of any tax which may be payable in respect of any
transfer involved in such issuance or shall establish to the satisfaction
of the corporation that such tax has been paid.
4. Each share of Common Stock and Class B Common Stock shall be
equal in respect of rights to dividends and other distributions in cash,
stock or property of the corporation, provided that in the case of
dividends or other distributions payable in stock of the corporation,
<PAGE>
including distributions pursuant to stock split-ups or divisions of stock
of the corporation, which occur after the date shares of Class B Common
Stock are first issued by the corporation, only shares of Common Stock
shall be distributed with respect to Common Stock and only shares of
Class B Common Stock shall be distributed with respect to Class B Common
Stock.
5. Except as otherwise provided in paragraph 4 above, the
corporation shall not issue additional shares of Class B Common Stock
after the date shares of Class B Common Stock are first issued by the
corporation, and all shares of Class B Common Stock surrendered for
conversion shall be retired, unless otherwise approved by the affirmative
vote of the holders of a majority of the outstanding shares of stock of
the corporation entitled to vote.
6. The number of authorized shares of any class or classes of stock
of the corporation may be increased or decreased by the affirmative vote
of the holders of a majority of the outstanding shares of stock of the
corporation entitled to vote.
. No stockholder of the corporation shall be entitled as of right
to subscribe for, purchase or receive any part of any new or additional
issue of stock of any class, whether now or hereafter authorized, or of
bonds, debentures or other securities convertible into or exchangeable
for stock, but all such additional shares of stock of any class, or bonds,
debentures or other securities convertible into or exchangeable for stock,
may be issued and disposed of by the board of directors on such terms and
for such consideration, so far as may be permitted by law, and to such
persons, as the board of directors in its absolute discretion may deem
advisable.
Fifth. The following provisions regarding the election and removal
of directors are established:
(a) The number of directors of the corporation shall be not less
than ten or than twenty, and, subject to such limitations shall be fixed
from time to time by or pursuant to the bylaws. The directors shall be
classified, with respect to the time for which they severally hold office,
into three classes. as nearly equal in number as possible (and, if Class
B Common Stock is outstanding, consisting as nearly as possible of one
director elected by the Common Stock, voting separately as a class, for
every two directors elected by the Common Stock voting together,), one
class to be originally elected for a term expiring at the 1987 annual
meeting of stockholders, another class to be originally elected for a
term expiring at the 1988 annual meeting of stockholders, and another
class to be originally elected for a term expiring at the 1989 annual
meeting of stockholders, with the members of each class to hold office
until their successors have been elected and have qualified. At each
annual meeting of stockholders, the successors of the class of directors
whose term expires at that meeting shall be elected to hold office for
a term expiring at the annual meeting of stockholders held in the third
year following the year of their election. Notwithstanding the
foregoing, the term of any director who is then 70 years of age or older
shall in all events expire at the 1989 annual meeting of stockholders,
and thereafter the term of each director shall in all events expire at
the annual meeting of stockholders next following such director's 70th
birthday.
<PAGE>
(b) Nominations for the election of directors may be made by the board
of directors or by any stockholder entitled to vote in the election of
directors. However, any stockholder entitled to vote in the election of
directors may nominate one or more persons for election as director only
if written notice of such stockholder's intent to make such nomination
or nominations has been given, either by personal delivery or by United
States mail, postage prepaid, to the Secretary of the corporation not
later than (i) with respect to an election to be held at all annual
meeting of stockholders, 45 days in advance of the calendar day on which
the corporation's proxy statement was released to stockholders in
connection with the previous year's annual meeting of stockholders and
(ii) with respect to an election to be held at a special meeting of
stockholders for the election of directors, the close of business on
the seventh day following the day on which notice of such meeting is
first given to stockholders. Each such notice shall set forth: (A) the
name and address of the stockholder who intends to make the nomination
or nominations and of the person or persons to be nominated; (B) a
representation that the stockholder is a holder of record of stock of
the corporation entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to nominate the person or persons
specified in the notice; (C) a description of all arrangements or
understandings between such stockholder and each nominee and any other
person or persons (naming such person or persons) pursuant to which the
nomination or nominations is or are to be made by the stockholder; (D)
such other information regarding each nominee proposed by such
stockholder as would have been required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and
Exchange Commission if the nominee had been nominated by the board of
directors; and (E) the consent of each nominee to serve as a director
of the corporation if elected. The chairman of any meeting of
stockholders may refuse to acknowledge the nomination of any person if
not made in compliance with the foregoing procedure.
(c) Newly created directorships resulting from any increase in the
number of directors and any vacancies on the board of directors resulting
from resignation, retirement, death, disqualification, removal, or other
cause may be filled by a majority of the remaining directors then in
office, even if less than a quorum, except as Article Fourth otherwise
provides with respect to. If Class B Common Stock is outstanding, the
election of directors by the holders of theCommon Stock vating separately
as a class. Any director elected in accordance with the preceding
sentence shall hold office for the remainder of the full term of the
class of directors in which the new directorship was created or the
vacancy occurred and until such director's successor has been elected
and has qualified. No decrease in the number of directors constituting
the board of directors shall shorten the term of any incumbent director.
(d) Any director may be removed from office only for cause and only
by the affirmative vote of the holders of at least 80% of the voting
power of the Outstanding Voting Stock (as defined in paragraph (a) of
Article Seventh), voting together as a single class, except as Article
Fourth otherwise provides with respect to, if Class B Common Stock is
outstanding,
<PAGE>
the election of directors by the holders of the Common Stock voting
separately as a class.
(e) Notwithstanding any other provision of this certificate of
incorporation or the bylaws (and notwithstanding the fact that a lesser
percentage may be specified by law, this certificate of incorporation
or the bylaws), the affirmative vote of the holders of at least 80% of
the voting power of the outstanding Voting Stock, voting together as a
single class, shall be required to alter, amend, adopt any provision
inconsistent with, or repeal this Article Fifth.
SIXTH. Any action required or permitted to be taken by the
stockholders of tile corporation must be taken at a duly called annual
or special meeting of stockholders and may not be taken by any consent
in writing of such holders. Special meetings of stockholders of the
corporation may be called only by a majority vote of the whole board of
directors, except as otherwise required by law and except as Article
Fourth otherwise provides with respect to special meetings to be called
for the purpose of the election of directors by, if Class B Common Stock
is outstanding, the holders of the Common Stock voting separately as a
class. Notwithstanding any other provision of this certificate of
incorporation or the bylaws (and notwithstanding the fact that a lesser
percentage may be specified by law, this certificate of incorporation
or the bylaws), the affirmative vote of the holders of at least 80% of
the voting power of the outstanding Voting Stock, voting together as a
single class, shall be required to alter, amend, adopt any provision
inconsistent with, or repeal this Article Sixth.
SEVENTH. The following provisions concerning certain actions and
transactions are established:
(a) In addition to any affirmative vote required by law or this
certificate of incorporation, and except as otherwise expressly provided
in paragraph (c) of this Article Seventh:
(i) any merger or consolidation of the corporation or any
Subsidiary (as hereinafter defined) with (A) any Interested Stockholder
(as hereinafter defined) or (B) any other person (whether or not itself
an Interested Stockholder) which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter defined) of any
Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or in a series of transactions)
to or with any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the corporation or any Subsidiary having an
aggregate Fair Market Value (as hereinafter defined) of $25 million or
more; or
(iii) the issuance or transfer by the corporation or any
Subsidiary (in one transaction or in a series of transactions) of any
securities of the corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in exchange
for cash, securities or other property (or a combination thereof) having
an aggregate Fair Market Value of $25 million or more; or
<PAGE>
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the corporation proposed by or on behalf of any
Interested Stockholder or any Affiliate of any Interested Stockholder;
or
(v) any reclassification of securities (including any reverse
stock split), or recapitalization of the corporation, or any merger or
consolidation of the corporation with any Subsidiary or any other
transaction (whether or not with or into or, otherwise involving any
Interested Stockholder) which has the effect, directly or indirectly,
of increasing the proportionate share of the outstanding shares of any
class of Equity Security (as hereinafter defined) of the corporation or
any Subsidiary which is directly or indirectly owned by any Interested
Stockholder or any Affiliate of any Interested Stockholder; shall
require the affirmative vote of the holders of at least 80% of the
voting power of the outstanding shares of capital stock of the
corporation entitled to vote for the election of directors (the "Voting
Stock"), voting together as a single class. Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or
that a lesser percentage may be specified, by law or in any agreement
with any national securities exchange or otherwise.
(b) The term "Business Combination" means any transaction
described in clauses (i) through (v) of paragraph (a) of this Article
Seventh.
(c) The provisions of paragraph (a) of this Article Seventh shall
not be applicable to a Business Combination, and the Business Combination
shall require only the affirmative vote required by law and any other
provision of this certificate of incorporation, if all of the conditions
specified in either of the following subparagraphs (i) or (ii) are met:
(i) The Business Combination shall have been approved by a
majority of the Continuing Directors (as hereinafter defined).
(ii) All of the following conditions shall have been met:
(A) The aggregate amount of the cash and the Fair Market Value as
of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of
Common Stock and Class B Common Stock in the Business Combination is at
least equal to the highest of the following:
(1) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid
by the Interested Stockholder in question for any shares of Common Stock
acquired by it (x) within the two-year period immediately prior to the
first public announcement of the terms of the proposed Business
Combination (the "Announcement Date") or (y) in the transaction in which
such Interested Stockholder became an Interested Stockholder; or
<PAGE>
(2) the Fair Market Value per share of Common Stock on the
Announcement Date; or
(3) the Fair Market Value per share of Common Stock on the date on
which the Interested Stockholder in question became an Interested
Stockholder (the "Determination Date").
(B) The aggregate amount of the cash and the Fair Market Value
as of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of
any other class of outstanding Voting Stock is at least equal to the
highest of the following:
(1) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid
by the Interested Stockholder in question for any shares of such class
of Voting Stock acquired by it (x) within the two-year period immediately
prior to the Announcement Date or (y) in the transaction in which such
Interested Stockholder became an Interested Stockholder; or
(2) (if applicable) the highest preferential amount per share to
which the holders of such class of Voting Stock are entitled in the
event of any voluntary or involuntary liquidation or dissolution of the
corporation; or
(3) the Fair Market Value per share of such class of Voting Stock
on the Announcement Date; or
(4) the Fair Market Value per share of such class of Voting Stock
on-the Determination Date.
(C) The consideration to be received by holders of a particular
class of outstanding Voting Stock is in cash or in the same form as the
Interested Stockholder in question has previously paid for shares of such
class of Voting Stock, provided that the consideration to be received
by holders of Class B Common Stock must be in cash or in the same form
as such Interested Stockholder has previously paid for Common Stock. If
the Interested Stockholder in question has previously paid for shares
of any class of Voting Stock with varying forms of consideration, the
form of consideration to be paid for shares of such class of Voting
Stock purchased in the transaction in question hereunder must be either
cash or the form used previously by such Interested Stockholder to
acquire the largest number of shares of such class of Voting Stock.
The price determined in accordance with subparagraphs (ii) (A) and (ii)
(B) of this paragraph (c) shall be subject to appropriate adjustment in
the event of any stock dividend, stock split, combination of shares or
similar event.
<PAGE>
(D) After the Interested Stockholder in question has become an
Interested Stockholder and prior to the consummation of such Business
Combination: (1) except as approved by a majority of the Continuing
Directors, there shall have been no failure to declare and pay, in whole
or in part, at the regular date therefor any dividends (whether or not
cumulative) on the outstanding stock having preference over the Common
Stock as to dividends or upon liquidations (2) there shall have been
(x) no reduction in the annual rate of dividends paid on Common Stock or
Class B Common Stock (except as necessary to reflect any subdivision
of the Common Stock or Class B Common Stock), except as approved by a
majority of the Continuing Directors, and (y) no increase in such annual
rate of dividends (except as necessary to reflect any reclassification
(including any reverse stock split), recapitalization, reorganization or
any similar transaction which has the effect of reducing the number of
outstanding shares of Common Stock or Class B Common Stock), except as
approved by a majority of the Continuing Directors; and (3) such
Interested Stockholder shall not have become the beneficial owner of
any additional shares of Voting Stock subsequent to the transaction in
which it became an Interested Stockholder.
(E) After the Interested Stockholder in question has become an
Interested Stockholder, it shall not have received the benefit, directly
or indirectly (except proportionately with all other stockholders of the
corporation), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages provided
by the corporation, whether in anticipation of or in connection with
such Business Combination or otherwise.
(F) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations thereunder
(or any subsequent provisions replacing such Act, rules or regulations)
shall be mailed to the stockholders of the corporation at least 30 days
prior to the consummation of such Business Combination (whether or not
such proxy or information statement is required to be mailed pursuant
to such Act or subsequent provisions).
(d) For purposes of this Article Seventh:
(i) a "person" means any individual, proprietorship, partnership,
corporation or other entity, or any group of two or more of the
foregoing acting together.
(ii) "Interested Stockholder" means any person (other than the
corporation or any subsidiary) who or which:
(A) is the beneficial owner, directly or indirectly, of 10% or
more of the voting power of the outstanding Voting Stock; or
<PAGE>
(B) is an Affiliate of the corporation and at any time within the
two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 10% or more of the voting
power of the then outstanding Voting Stock; or
(C) is an assignee of or has otherwise succeeded to any shares of
Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by an
Interested Stockholder, if such assignment or succession occurred in the
course of a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(iii) A person is a "beneficial owner" of any Voting Stock:
(A) that such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns directly or indirectly; or
(B) that such person or any of its Affiliates or Associates has
(1) the right to acquire (whether such right is exercisable immediately
or only after the passage of time or upon the occurrence of an event,
or both) pursuant to any agreement, arrangement or understanding or
upon the exercise of conversionrights, exchange rights, warrants or
options, or otherwise, or (2) the right to vote pursuant to any
agreement, arrangement or understanding; or
(C) that is beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
Voting Stock.
(iv) For the purpose of determining whether a person is an
Interested Stockholder pursuant to subparagraph (ii) of this paragraph
(d), the number of shares of Voting Stock deemed to be outstanding shall
include shares deemed owned through application of subparagraph (iii) of
this paragraph (d), but shall not include any other shares of Voting
Stock that may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
(v) "Affiliate" and "Associate" have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
March 1, 1986.
(vi) "Subsidiary" means any corporation of which a majority of
any class of Equity Security is owned, directly or indirectly, by the
corporation, provided that for the purposes of the definition of
Interested Stockholder set forth in subparagraph (ii) of this paragraph
(d), the term "Subsidiary" shall mean only a corporation of which a
majority
<PAGE>
of each class of Equity Security is owned, directly or indirectly, by
the corporation.
(vii) "Continuing Director" means (A) any member of the board
of directors who was a member of the board on April 15, 1986, (B) any
member of the board of directors who is unaffiliated with the Interested
Stockholder in question and who was a member of the board prior to the
time that such Interested Stockholder became an Interested Stockholder,
and (C) any member of the board of directors who was nominated or elected
by a majority of Continuing Directors then on the Board of directors.
(viii) "Fair Market Value" means (A) in the case of stock, the
highest closing sale price during the 30-day period immediately preceding
the date in question of a share of such stock on the Composite Tape for
New York Stock Exchange - Listed Stocks, or, if such stock is not quoted
on the Composite Tape, on the New York Stock Exchange, or, if such stock
is not listed on such Exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934 on which
such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a share of
such stock during the 30-day period immediately preceding the date in
question on the National Association of Securities Dealers, Inc.
Automated Quotations System or any system then in use, or if no such
quotations are available, the fair market value on the date in question
of a share of such stock as determined by the board of directors in good
faith and (B) in the case of property other than cash or stock, the fair
market value of such property on the date in question as determined by
the board of directors in good faith.
(ix) In the event of any Business Combination in which the
corporation survives, the phrase "consideration other than cash to be
received" as used in sub-paragraphs (ii)(A) and (B) of paragraph (c)
of this Article Seventh shall include the shares of Common Stock,
Class B Common Stock and the shares of any other class of outstanding
Voting Stock retained by the holders of such shares.
(x) "Equity Security" has the meaning ascribed to such term in
Section 3 (a) (11) of the Securities Exchange Act of 1934, as in effect
on March 1, 1986.
(e) A majority of the entire board of directors shall have the
power and duty to determine for purposes of this Article Seventh, on
the basis of information known to the directors after reasonable
inquiry, (i) whether a person is an Interested Stockholder, (ii) the
number of shares of Voting Stock beneficially owned by any person,
(iii) whether a person is an Affiliate or Associate of another, and
(iv) whether the assets that are the subject of any Business
Combination have, or the consideration to be received for the issuance
or transfer of securities by the corporation or any Subsidiary in
any Business Combination has, an aggregate Fair Market Value of $25
million or more. A majority of the entire board of directors shall
have the further power to interpret all of the terms and provisions
of this Article Seventh.
<PAGE>
(f) Nothing contained in this Article Seventh shall be construed
to relieve any Interested Stockholder of any fiduciary obligation
imposed by law.
(g) Notwithstanding any other provision of this certificate of
incorporation or the bylaws (and notwithstanding the fact that a lesser
percentage may be specified by law, this certificate of incorporation or
the bylaws), the affirmative vote of the holders of at least 80% of the
voting power of the outstanding Voting Stock, voting together as a
single class, shall be required to alter, amend, adopt any provision
inconsistent with, or repeal this Article Seventh.
EIGHTH. The board of directors of the corporation, when evaluating
any actions or transactions described in paragraph (a) of Article Seventh
of this certificate of incorporation, shall give due consideration to all
relevant factors, including without limitation the effect of such action
or transaction upon the independence and integrity of the corporation's
publications and services and the social and economic effects of such
action or transaction upon the corporation's stockholders, employees,
subscribers, readers, advertisers, customers, suppliers and other
constituencies, and on the communities in which the corporation and its
subsidiaries operate or are located.
NINTH. The minimum amount of capital with which the corporation
will commence business is One Thousand Dollars ($1,000).
TENTH. The names and places of residence of the incorporators
are as follows:
Guy Bancroft 164 Riverway
Boston, Massachusetts
Richard B. Cole 64 Valentine Park
West Newton, Massachusetts
Lawrence M. Lombard Dedham, Massachusetts
ELEVENTH. The corporation is to have perpetual existence.
TWELFTH. The private property of the stockholders shall not be
subject to the payment of corporate debts to any extent whatever.
THIRTEENTH. In furtherance and not in limitation of the powers
conferred by statute, the board of directors is expressly authorized:
(a) To make, alter or repeal the bylaws of the corporation;
(b) To authorize and cause to be executed mortgages and liens
upon the real and personal property of the corporation;
(c) To set apart out of any of the funds of the corporation
available for dividends a reserve or reserves for any proper purpose
and to abolish any such reserve in the manner in which it was created;
<PAGE>
(d) By resolution or resolutions passed by a majority of the
whole board, to designate one or more committees, each committee to
consist of two or more of the directors of the corporation, which,
to the extent provided in said resolution or resolutions or in the
bylaws of the corporation, shall have and may exercise the powers of
the board of directors in the management of the business and affairs
of the corporation, and may authorize the seal of thecorporation to
be affixed to all papers which may require it. Such committee or
committees shall have such name or names as may be stated in the
bylaws of the corporation or as may be determined from time to time
by resolution adopted by the board of directors;
(e) When and as authorized by the affirmative vote of the
holders of a majority of the stock issued and outstanding having voting
power given at a stockholders' meeting duly called for that purpose, or
when authorized by the written consent of the holders of a majority of
the voting stock issued and outstanding, to sell, lease or exchange all
of the property and assets of the corporation, including its good will
and its corporate franchises, upon such terms and conditions and for
such consideration, which may be in whole or in part shares of stock
in, and/or other securities of, any other corporation or corporations,
as its board of directors shall deem expedient and for the best
interests of the corporation;
(f) From time to time to determine whether and to what extent,
at what time and place and under what conditions and regulations the
accounts and books of the corporation or any of them shall be open to
the inspection of any stockholders; and no stockholder shall have any
right to inspect any account or book or document of the corporation
except as conferred by statute or bylaws or as authorized by a resolution
of the stockholders or board of directors.
FOURTEENTH. Whenever a compromise or arrangement is proposed
between this corporation and its creditors or any class of them and/or
between this corporation and its stockholders or any class of them, any
court of equitable jurisdiction within the State of Delaware may, on
the application in a summary way of this corporation or of any creditor
or stockholder thereof, or on the application of any receiver or
receivers appointed for this corporation under the provisions of Section
291 of Title 8 of the Delaware Code or under any similar provisions
enacted in place thereof or on the application of trustees in dissolution
or of any receiver or receivers appointed for this corporation under the
provisions of Section 279 of Title 8 of the Delaware Code or under any
similar provisions enacted in place thereof, order a meeting of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, to be summoned in
such manner as the said Court directs. If a majority in number
representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement
and to any reorganization of this corporatio as consequence of such
compromise or arrangement, the said compromise or arrangement and the
said reorganization shall, if sanctioned by the Court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of stockholders of
this corporation, as the case may be, and also on this corporation.
<PAGE>
FIFTEENTH. A director of the corporation shall not be disqualified
by his office from dealing or contracting with the corporation either as
a vendor, purchaser or otherwise, nor shall any transaction or contract
of the corporation be void or voidable by reason of the fact that any
director or any firm of which any director is a member or any corporation
of which any director is a shareholder, officer or director, is in any
way interested in such transaction or contract, provided that such
transaction or contract is or shall be authorized, ratified or approved
(1) by a vote of a majority of a quorum of the board of directors without
including in such majority or quorum any director so interested or member
of a firm so interested, or a shareholder, officer or director of a
corporation so interested, or (2) by the written consent of the holders
of record of a majority of the outstanding shares of stock of the
corporation entitled to vote, or (3) by the affirmative vote of the
holders of a majority of stock of the corporation represented at any
meeting at which a quorum is present, and provided further that such
interest shall have been fully disclosed or otherwise known to the
directors or stockholders authorizing, ratifying or approving such
transaction or contract; nor shall any director be liable to account to
the corporation for any profits realized by or from or through any such
transaction or contract of the corporation authorized, ratified or
approved as aforesaid by reason of the fact that he, or any firm of which
he is a member or any corporation of which he is a shareholder, officer
or director was interested in such transaction or contract. Nothing
herein contained shall create liability in the events above described
or prevent the authorization, ratification or approval of such
transactions or contracts in any other manner.
SIXTEENTH. Meetings of stockholders may be held without the State
of Delaware, if the bylaws so provide. The books of the corporation may
be kept (subject to any provision contained in the statutes) outside of
the State of Delaware at such place or places as may be from time to time
designated by the board of directors or in the bylaws of the corporation.
Elections of directors need not be by ballot unless the bylaws of the
corporation shall so provide.
SEVENTEENTH. No director of the corporation shall be liable to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which
the director derived an improper personal benefit. Neither the amendment
nor the repeal of this Article Seventeenth, nor the adoption of any
provision of the certificate of incorporation inconsistent with this
Article Seventeenth, shall eliminate or reduce the effect of this
Article Seventeenth on any cause of action that arises out of an act or
omission of a director occurring prior to such amendment, repeal or
adoption.
EIGHTEENTH. The corporation reserves the right to amend, alter,
change or repeal any provision contained in this certificate of
incorporation, in the manner now or hereafter prescribed by statute, and
all rights conferred upon stockholders herein are granted subject to
this reservation.
<PAGE>
EXHIBIT 10.16
BYLAWS
OF
DOW JONES & COMPANY, INC.
(Restated as of May 17, 1989)
OFFICES AND RECORDS
1. The corporation shall maintain a registered office in Delaware
and may maintain such other offices and keep its books, documents and
records at such places within or without Delaware as may from time to
time be designated by the board of directors or the business of the
corporation may require.
MEETINGS OF STOCKHOLDERS
2. All meetings of the stockholders shall be held at such place
within or without Delaware as the board of directors shall designate.
The place at which any given meeting is to be held shall be specified
in the notice of such meeting.
3. An annual meeting of the stockholders of the corporation for
the election of directors and for the transaction of any other proper
business shall be held either (i) at 11:00 a.m. on the third Wednesday
in April, unless such day is a legal holiday, in which event the meeting
shall be held at the same time on the next business day, or (ii) at such
other time and date as the board of directors shall designate.
4. Except as otherwise provided by the laws of Delaware or by the
certificate of incorporation, a quorum for the transaction of business
at meetings of the stockholders, other than the election of directors to
be elected by the holders of common stock voting separately as a class,
shall consist of the holders of a majority of the votes of the shares of
stock entitled to vote thereat, present in person or represented by
proxy. A quorum for the election of directors to be elected by the
holders of common stock voting separately as a class shall consist of
the holders of a majority of the shares of common stock entitled to vote
thereat, present in person or represented by proxy. Whether or not a
quorum is present, the holders of a majority of the votes of the shares
of stock present in person or by proxy at any duly called meeting and
entitled to vote thereat may adjourn the meeting from time to time to
another time or place, at which time, if a quorum is present, any
business may be transacted which might have been transacted at the
meeting as originally scheduled. Notice need not be given of the
adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken, unless the adjournment is
for more than thirty days or a new record date is fixed for the
adjourned meeting, in which event a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the
meeting.
5. Every stockholder having the right to vote at a meeting of
stockholders shall be entitled to exercise such vote in person or by
proxy appointed by an instrument in writing subscribed by such
stockholder or by his duly authorized attorney-in-fact. At every
meeting of the stockholders every holder of common stock shall be
entitled to one (1) vote in person or by proxy for each share of
common stock standing in his name on the stock transfer records of the
corporation and every holder of class B common stock shall be entitled
to ten (10) votes in person or by proxy for each share of class B common
<PAGE>
stock standing
in his name on the stock transfer records of the corporation, provided
that at every meeting of the stockholders called for the election of
directors the holders of common stock, voting separately as a class,
shall be entitled to elect one-third (1/3) of the number of directors to
be elected at such meeting and if one-third (1/3) of such number of
directors is not a whole number, then the holders of common stock,
voting separately as a class, shall be entitled to elect the next higher
whole number of directors to be elected at such meeting, and the holders
of class B common stock shall have no voting rights with respect to the
election of such directors. Except as otherwise provided by the laws of
Delaware, by the certificate of incorporation or by these bylaws, all
elections shall be determined and all questions decided by, a plurality
of the votes cast in respect thereof, a quorum being present. Every
reference in these bylaws to a majority or other proportion of shares of
stock shall refer to such majority or other proportion of the votes of
such shares of stock.
6. The secretary shall prepare and make, at least ten days before
every meeting of the stockholders a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and
showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder for any, purpose germane to the
meeting, during ordinary, business hours, for a period of at least ten
days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of
meeting, or, if not so specified, at the place where the meeting is to
be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by
any stockholder who is present.
7. Notice of each meeting of the stockholders shall be given by
the secretary, not less than ten nor more than sixty days before the
meeting, to each stockholder entitled to vote at such meeting. Such
notice shall set forth the place, date and hour of the meeting, and, in
the case of a special meeting, the purpose or purposes thereof, and the
business transacted at any special meeting shall be confined to the
purposes stated in such notice. No such notice of any given meeting
need be given to any stockholder who files a written waiver of notice
thereof with the secretary either before or after the meeting.
Attendance of a person at a meeting of stockholders in person or by
proxy, shall constitute a waiver of notice of such meeting, except when
the tockholder attends the meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
BOARD OF DIRECTORS
8. The business of the corporation shall be managed by its board
of directors. The number of directors shall be not less than ten nor
more than twenty, and, subject to such limitation shall be fixed from
time to time by majority vote of the whole board of directors.
Resignations of directors must be in writing and shall be effective upon
the date of receipt thereof by the secretary or upon an effective date
specified therein, whichever date is later, unless acceptance is made a
condition of the resignation, in which event it shall be effective upon
<PAGE>
acceptance by the board. Except for directors who were in office on
October 31, 1977, no director who is an employee of the corporation
or any of its subsidiaries at the time of his election as a director
shall be eligible for reelection as a director after the termination
of his employment.
9. The board of directors may by resolution request any retired director
to serve in an advisory capacity. Service in an advisory capacity shall
be at the pleasure of the board and upon such terms and conditions and
for such compensation as the board may determine. A retired director
serving in suchan advisory capacity may attend meetings of the board and
take part in discussions thereat but may not vote upon any matter
thereat and shall not be considered a director as that term is used in
these bylaws or in the certificate of incorporation.
10. The board of directors may exercise all such powers of the
corporation and do all such lawful acts and things as are not by the
laws of Delaware. by, the certificate of incorporation or by these
bylaws directed or required to be exercised or done by the stockholders.
MEETINGS OF THE BOARD
11. The first meeting of the board of directors after the annual
meeting of stockholders may be held without notice, either immediately
after said meeting of stockholders, or at such other time and at such
place, whether within or without Delaware, as shall be determined by
the board.
12. Regular meetings of the board may be held without notice at
such time and place whether within or without Delaware, as shall from
time to time be determined by the board.
13. Special meetings of the board of directors shall be called by the
secretary at the request in writing of the chairman of the board or the
president or of any two directors. Such request shall state the purpose
or purposes of the proposed meeting. Such meeting may be held at any
place, whether within or without Delaware. Notwithstanding the
provisions of section 40 of these bylaws, notice of each such meeting
shall be given by the secretary or the chairman of the board to each
director at least four hours before the meeting: such notice may be
given by telephone. Such notice shall set forth the time and place at
which the meeting is to be held and the purpose or purposes thereof. No
such notice of any given meeting need be given to any director who
files a written waiver of notice thereof with the secretary, either
before or after the meeting.
14. At meetings of the board of directors, a majority of the
directors then in office shall constitute a quorum for the transaction
of business unless there is an even number of directors in office in
which event one-half thereof shall constitute such a quorum: provided.
However, that in no event shall such a quorum consist of less than
one-third of the total number of directors determined by the board of
directors under section 8. In the absence of a quorum at any duly
scheduled or duly called meeting, a majority of the directors present
may adjourn the meeting from time to time, without notice other than
announcement at the meeting until a quorum is present. at which time
any business may be transacted which might have been transacted at the
meeting, as originally scheduled.
<PAGE>
15. Any action required or permitted to be taken at any meeting of the
board of directors or of any committee thereof may be taken without a
meeting if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the board or committee.
EXECUTIVE COMMITTE
16. An executive committee of three or more directors may be
designated by resolution passed by a majority of the whole board. The
board may designate one or more directors as alternate members of the
executive committee, who may replace any absent or disqualified member
at any meeting of the executive committee. During the intervals between
meetings of the board the executive committee shall advise and aid the
officers of the corporation in all matters concerning its interests and
the management of its business. and generally perform such duties as may
be directed by the board of directors from time to time. The executive
committee shall possess and may exercise all the powers ofthe board
while the board is not in session, except power to amend the bylaws and
to fill newly created directorships and vacancies on the board or the
executive committee. Unless he resigns, dies or is removed prior
thereto, each member of the executive committee shall continue to hold
office until the first meeting of the board of directors after the
annual meeting of stockholders next following his designation, and until
his successor has been designated. Resignations of members of the
executive committee must be in writing and shall be effective upon the
date of receipt thereof by the secretary or upon the effective date
specified therein whichever date is later unless acceptance is made a
condition of the resignation, in which event it shall be effective upon
acceptance by the board. Any member of the executive committee may be
removed at any time, with or without cause by a majority vote of the
whole board. Regular meetings of the executive committee may be held
without notice at such time and place as shall from time to time be
determined by the executive committee. Special meetings of the
executive committee shall be called by the secretary at the request of
the chairman of the board or of the president or of any two members of
the committee. Notice of each special meeting of the executive
committee shall be given by the secretary to each member of the
committee. No such notice of any given meeting need be given to any
member of the executive committee who attends the meeting or who files
a written waiver of notice thereof with the secretary, either before or
after the meeting.
17. A quorum for the transaction of business at meetings of the
executive committee shall consist of a majority of the members of the
committee then in office. If the board has not designated alternate
members of the executive committee, or if all such alternates are absent
or disqualified, the members of the committee present at any meeting and
not disqualified from voting, whether or not they constitute a quorum,
may in the absence or disqualification of any member of the committee
unanimously appoint another member of the board of directors to act at
the meeting in the place of such absent or disqualified member.
18. The executive committee shall keep regular minutes of its
proceedings when any action is taken other than recommendations to the
board and report the same to the board also.
<PAGE>
COMPENSATION OF DIRECTORS
19. The directors as such, and as members of any special or
standing committee may receive such compensation for their services as
may be fixed from time to time by resolution of the board. Nothing
herein contained shall be construed to preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor.
OFFICERS
20. The officers of the corporation shall be chosen by the board
of directors. The principal officers shall be a chairman of the board,
a president, a vice chairman, one or more vice presidents (one or more
of whom may be designated as executive or senior vice presidents or by
other designations), a secretary and a treasurer. Two or more offices
may be held by the same person. The chairman of the board, the
president and the vice chairman shall be chosen by the directors from
their own number. The salaries of the principal officers of the
corporation shall be fixed by the board.
21. The board may appoint such other officers, assistant officers
and agents as it shall deem necessary, who shall hold their offices for
such terms and shall exercise such powers and perform such duties as
shall be determined by the board.
22. Unless he resigns, dies or is removed prior thereto, each
officer of the corporation shall hold office until his successor has
been chosen and has qualified. Any person elected or appointed by the
board of directors may be removed at any time with or without cause,
and all vacancies (however arising) may be filled at any time, by the
affirmative vote of a majority of the directors then in office. Any
other employee of the corporation may be removed at any time, with or
without cause, by the chairman of the board or the president or by any
superior of such employee to whom the power of removal has been
delegated by the chairman of the board or the president.
CHAIRMAN OF THE BOARD
23. (a) The chairman of the board shall preside at all meetings
of the stockholders and directors.
(b) He shall be the chief executive officer and have general
supervision and direction of the business of the corporation, shall see
that all resolutions of the board are carried into effect and shall be
a member of all committees of the board except any audit or compensation
committee appointed bythe board.
(c) He shall have all the general powers and duties usually
vested in the chief executive officer of a corporation and in addition
shall have such other powers and perform such other duties as may be
prescribed from time to time by the board of directors.
<PAGE>
PRESIDENT
24. (a) The president shall be the chief operating officer of the
corporation.
(b) He shall be vested with all the powers, and perform all
the duties of the chairman of the board in the absence or disability of
the chairman of the board.
VICE CHAIRMAN AND VICE PRESIDENTS
25. The vice chairman and each vice president shall have such
powers and perform such duties as may be prescribed from time to time
by the board of directors, the chairman of the board or the president.
In the absence or disability of the chairman of the board and the
president, the vice chairman shall be vested with all the powers and
perform all the duties of said officers, and the performance of any act
or the execution of any instrument by the vice chairman in any instance
in which such performance or execution would customarily have been
accomplished by the chairman of the board or the president shall
constitute conclusive evidence of the absence or disability of the
chairman of the board and the president.
SECRETARY
26. The secretary shall attend all meetings of the stockholders
and record all votes and the minutes of all proceedings in a book to be
kept for that purpose. He shall give, or cause to be given, notice of
all meetings of the stockholders and all meetings of directors when
notice is required by these bylaws. He shall have custody of the seal
of the corporation and, when authorized by the board of directors or
when any instrument requiring the corporate seal to be affixed shall
first have been signed by the chairman of the board, the president, the
vice chairman or a vice president, shall affix the seal to such
instrument and shall attest the same by his signature. He shall have
such other powers and perform such other duties as may be prescribed
from time to time by the board of directors or the chairman of the
board or the president.
ASSISTANT SECRETARY
27. If the board appoints one or more assistant secretaries, each
assistant secretary shall be vested with all the powers and authorized
to perform all the duties of the secretary in his absence or disability.
The performance of any act or the execution of any instrument by an
assistant secretary in any instance in which such performance or
execution would customarily have been accomplished by the secretary
shall constitute conclusive evidence of the absence or disability of
the secretary. Each assistant secretary shall perform such other
duties as may be prescribed from time to time by the board of directors
or the chairman of the board or the president or the secretary.
<PAGE>
TREASURER
28. (a) The treasurer shall have custody of the corporate funds
and securities, shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit
all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the board
of directors
(b) He shall disburse the funds of the corporation as ordered
by the board taking proper vouchers for such disbursements and shall
render to the chairman of the board. the president and the board of
directors, at the regular meetings of the board, or whenever they may
require it, an account of all his transactions as treasurer and of the
financial condition of the corporation.
(c) If required by the board of directors, he shall give the
corporation a bond, in a sum and with one or more sureties satisfactory
to the board, for the faithful performance of the duties of his office
and for the restoration to the corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession
or under his control belonging to the corporation.
(d) He shall have such other powers and perform such other
duties as may be prescribed from time to time by the board of directors
or the chairman of the board or the president.
ASSISTANT TREASURERS
29. If the board appoints one or more assistant treasurers each
assistant treasurer shall be vested with all the powers and authorized
to perform all the duties of the treasurer in his absence or disability.
The performance of any act or the execution of any instrument by an
assistant treasurer in any instance in which such performance or
execution would customarily have been accomplished by the treasurer
shall constitute conclusive evidence of the absence or disability of
the treasurer. Each assistant treasurer shall perform such other duties
as may be prescribed from time to time by the board of directors or the
chairman of the board or the president or the treasurer.
DUTIES OF OFFICERS MAY BE DELEGATED
30. In the case of the absence of any officer of the corporation,
or for any other reason that the board may deem sufficient, the board
may delegate for the time being the powers or duties, or any of them,
of such officer to any other officer or to any director.
POWERS OF EXECUTION
31. (a) All checks and other demands for money and notes and other
instruments for the payment of money shall be signed on behalf of the
corporation by the treasurer or an assistant treasurer or by such other
person or persons as the board of directors or the chairman of the board
or the president and the treasurer jointly may from time to time
designate.
<PAGE>
(b) All contracts, deeds and other instruments to which the
seal of the corporation is affixed shall be signed on behalf of the
corporation by the chairman of the board, by the president by the vice
chairman by any vice president, or by such other person or persons as
the board of directors may from time to time designate, and shall be
attested by the secretary or an assistant secretary.
(c) All other contracts, deeds and instruments shall be signed
on behalf of the corporation by the chairman of the board, by the
president, by the vice chairman, by any vice president, or by such other
person or persons as the board of directors or the chairman may from
time to time designate.
(d) All shares of stock owned by the corporation in other
corporations shall be voted on behalf of the corporation by such persons
and in such manner as shall be prescribed by the board of directors.
INDEMINIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS
32. The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigate, by reason of the fact that he is or was
a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director officer,
employee or agent of another corporation, partnership joint venture,
trust or other enterprise against expenses (including attorneys' fees),
judgments. fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding to
the full extent permitted by the General Corporation Law of Delaware,
upon such determination having been made as to his good faith and
conduct as is required by said General Corporation Law. Expenses
incurred in defending a civil or criminal action suit or proceeding
shall be paid by the corporation in advance o the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount
if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized by these bylaws.
CERTIFICATES OF STOCK
33. The certificates of stock of the corporation shall be numbered
and shall be entered in the books of the corporation as they are issued.
They shall exhibit the holder's name and number of shares and shall be
signed by (i) the chairman of the board or president or vice chairman or
a vice president and (ii) the treasurer or an assistant treasurer or the
secretary or an assistant secretary. Any or all of the signatures on
any stock certificate may be a facsimile. If any officer, transfer
agent or registrar who has signed or whose facsimile signature has been
placed upon a stock certificate shall cease to be such officer, transfer
agent or registrar before such certificate is issued, it may be issued
by the corporation with the same effect as if he were such an officer,
transfer agent or registrar at the date of issue.
<PAGE>
TRANSFERS OF STOCK
34. Transfers of stock shall be made on the books of the
corporation only by the person named in the certificate or by his
attorney, lawfully constituted in writing, and upon surrender of the
certificate therefor.
DATE FOR DETERMINING STOCKHOLDERS OF RECORD
35. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may
fix, in advance, a record date, which shall not be more than sixty nor
less than ten days before the date of such meeting, nor more than sixty
days prior to any other action.
REGISTERED STOCKHOLDERS
36. The corporation shall be entitled to treat the holder of
record of any share or shares of stock, as the holder in fact thereof,
and accordingly shall not be bound to recognize any equitable or other
claim to or interest in such share on the part of any other person,
whether or not it shall have expressor other notice thereof, save as
expressly provided by the laws of Delaware.
LOST CERTIFICATES
37. Any person claiming a certificate of stock to be lost, stolen
or destroyed shall make an affidavit of that fact in form satisfactory
to the corporation, and shall, if the board of directors so requires,
give the corporation a bond of indemnity, in form satisfactory to the
corporation whereupon a new certificate may be issued of the same tenor
and for the same number of shares as the one alleged to be lost, stolen
or destroyed. The board of directors in its discretion may, as a
prerequisite to the issuanceof a new certificate, impose such additional
lawful requirements as it sees fit.
DIVIDENDS
38. Dividends upon the capital stock of the corporation may be
declared by the board of directors at any regular or special meeting as
provided by the laws od Delaware and the certificate of incorporation.
Before payment of any dividend or making any distribution of profits,
there may be set aside out of the surplus or net profits of the
corporation such sum or sums as the directors from time to time, in
their absolute discretion, think proper as a reserve fund to meet
contingencies or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for such other purposes
as the directors shall think conducive to the interests of the
corporation.
<PAGE>
SEAL
39. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate
Seal, Delaware."
NOTICES
40. Whenever, under the provisions of these bylaws, notice is required
to be given to any director or stockholder, such notice may be given
in writing (i) by mail, by depositing the same in the United States
mail, postage prepaid, or (ii) by telegram, by delivering the same with
payment of the applicable tariff to a telegraph company for transmission,
in either case addressed to such director or stockholder at such address
as appears on the records of the corporation, and such notice shall be
deemed to be given at the time when the same shall be so mailed or so
delivered to a telegraph company.
AMENDMENTS
41. These bylaws may be altered or amended (i) at any regular
meeting of the stockholders by the affirmative vote of the holders of a
majority of the stock issued and outstanding and entitled to vote
thereat or (ii) at any regular meeting of the board of directors by the
affirmative vote of a majority of the directors then in office or (iii)
at any special meeting of the stockholders or of the directors by such
votes if notice of the proposed alteration or amendment shall have been
contained in the notice of such meeting.
FISCAL YEAR
42. The fiscal year of the corporation shall be the calendar year.
<PAGE>
EXHIBIT 10.17
$400,000,000
364-DAY AMENDED AND RESTATED CREDIT AGREEMENT
among
DOW JONES & COMPANY, INC.,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
as Documentation Agent,
FLEET NATIONAL BANK,
as Syndication Agent,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of June 29, 1999
CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
<S> <C> <C>
SECTION 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 12
SECTION 2. AMOUNT AND TERMS OF LOAN COMMITMENTS 12
2.1 Revolving Credit Commitments 12
2.2 The Competitive Loans 14
2.3 Type of Revolving Credit Loans 17
2.4 Fees 17
2.5 Termination or Reduction of Loan Commitments 18
2.6 Repayment of Loans 18
2.7 Optional Prepayments 18
2.8 Interest Rate and Payment Dates 19
2.9 Computation of Interest and Fees 19
2.10 Inability to Determine Interest Rate 20
2.11 Pro Rata Borrowings and Payments 20
2.12 Taxes 21
2.13 Illegality 25
2.14 Requirements of Law 25
2.15 Indemnity 26
2.16 Extension of Termination Date 27
SECTION 3. REPRESENTATIONS AND WARRANTIES 27
.1 Financial Condition 28
3.2 No Change 28
3.3 Corporate Existence; Compliance with Law 28
3.4 Corporate Power;Authorization;Enforceable Obligations 28
3.5 No Legal Bar 29
3.6 No Material Litigation 29
3.7 No Default 29
3.8 Ownership of Property; Liens 29
3.9 No Burdensome Restrictions 29
3.10 Taxes 30
3.11 Federal Regulations 30
3.12 ERISA 30
3.13 Investment Company Act 30
3.14 Subsidiaries 31
3.15 Purpose of Loans 31
3.16 Year 2000 Matters 31
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 4. CONDITIONS PRECEDENT 31
4.1 Conditions to Effectiveness 31
(a) Legal Opinion 31
(b) Officer's Certificate 31
(c) Secretary's Certificate 32
(d) Compliance 32
(e) Existing Credit Agreement 32
(f) Fees 32
(g) Additional Matters 32
4.2 Conditions to All Loans 32
(a) Representations and Warranties 32
(b) No Default or Event of Default 32
(c) Additional Conditions to Competitive Loans 33
SECTION 5. AFFIRMATIVE COVENANTS 33
5.1 Financial Statements 33
5.2 Certificates; Other Information 33
5.3 Payment of Obligations 34
5.4 Conduct of Business and Maintenance of Existence 34
5.5 Maintenance of Property; Insurance 34
5.6 Inspection of Property; Books and Records; Discussions 35
5.7 Notices 35
SECTION 6. NEGATIVE COVENANTS 36
6.1 Limitation on Liens 36
6.2 Limitation on Mergers and Sales of Assets 37
6.3 Maintenance of Ratio of Consolidated Total
Indebtedness to ConsolidatedTotal Capitalization 38
6.4 Maintenance of Ratio of Annualized Consolidated Cash flow 38
SECTION 7. EVENTS OF DEFAULT 38
SECTION 8. THE ADMINISTRATIVE AGENT 40
8.1 Appointment 40
8.2 Delegation of Duties 41
8.3 Exculpatory Provisions 41
8.4 Reliance by Administrative Agent 41
8.5 Notice of Default 42
8.6 Non-Reliance on Administrative Agent, Other Lenders 42
8.7 Indemnification 42
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
8.8 Administrative Agent in Its Individual Capacity 43
8.9 Successor Administrative Agent 43
8.10 Documentation Agent and Syndication Agent 43
SECTION 9. MISCELLANEOUS 43
9.1 Amendments and Waivers 43
9.2 Notices 44
9.3 No Waiver; Cumulative Remedies 45
9.4 Survival of Representations and Warranties 45
9.5 Payment of Expenses and Taxes 45
9.6 Successors and Assigns; Participations; Purchasing
Lenders 46
9.7 Adjustments; Set-off 50
9.8 Counterparts 50
9.9 Severability 50
9.10 Integration 51
9.11 Governing Law 51
9.12 Submission To Jurisdiction; Waivers 51
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C> <C>
Schedules
1.1 Loan Commitments 65
3.14 Subsidiaries 66
6.1 Existing Liens 67
9.2 Names and Addresses of Lenders 68
Exhibit
A Notice of Borrowing 71
B Competitive Loan Request 73
C Competitive Loan Offer 75
D Competitive Loan Confirmation 77
E Exemption Certificate 78
F Legal Opinion of Peter G. Skinner, Esq., Executive
Vice President and GeneralCounsel 80
G Officer's Certificate 83
H Secretary's Certificate 84
I Competitive Loan Assignment 86
J Assignment and Acceptance 91
</TABLE>
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June
29, 1999, among DOW JONES & COMPANY, INC., a Delaware corporation (the
"Company"), the several banks and other financial institutions or entities
from time to time parties to this Agreement (the "Lenders"), WESTDEUTSCHE
LANDESBANK GIROZENTRALE, as documentation agent (in such capacity, the
"Documentation Agent"), FLEET NATIONAL BANK, as syndication agent (in such
capacity, the"Syndication Agent"), and THE CHASE MANHATTAN BANK, as
administrative agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Company, the Administrative Agent and certain of the Lenders
are parties to the Revolving Credit Agreement dated as of November 16,
1994, as amended (the "Existing Credit Agreement"), and the parties hereto
wish to amend and restate the Existing Credit Agreement;
NOW, THEREFORE, the Existing Credit Agreement shall be amended and
restated to read in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms have
the following meanings:
"Absolute Rate Competitive Loan Request": any Competitive Loan Request
requesting the Competitive Loan Lenders to offer to make Competitive Loans
atan absolute rate (as opposed to a rate composed of the Applicable Index
Rate plus (or minus) a margin).
"Affiliate": any Person (other than a Subsidiary) which, directly or
indirectly, is in control of, is controlled by, or is under common control
with such Person. For purposes of this definition, control of a Person
shall mean the power, direct or indirect,
(i) to vote 10% or more of the securities having ordinary voting power for
the election of directors of such Person or (ii) to direct or cause the
direction of the management and policies of such Person whether by contract
or otherwise.
"Aggregate Loans": at a particular time, the sum of the then outstanding
principal amount of Revolving Credit Loans and Competitive Loans.
"Agreement": this Revolving Credit Agreement, as amended, supplemented or
modified from time to time.
"Alternate Base Rate": at any particular date, the highest of (a) the
Prime Rate, (b) 1/2 of 1% above the rate set forth for such date opposite
the caption "Federal Funds (Effective)" in the weekly statistical release
designated as "H.15 (510)," or any successor
<PAGE>
publication, published by the Board of Governors of the Federal Reserve
System and (c)the Base C/D Rate in effect on such date plus 1%. "Base CD
Rate" shall mean a rate per annum equal to the following:
Three-Month Secondary CD Rate + Assessment Rate
1.00 - Reserve Percentage
"Three-Month Secondary CD Rate" shall mean, for any day,
the secondary market rate for three-month certificates of deposit reported
as being in effect on such day (or, if such day shall not be a Business
Day, the next preceding Business Day) by the Board of Governors of the
Federal Reserve System through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current
practices of the Board of Governors of the Federal Reserve System, be
published in Federal Reserve Statistical Release H.15(519) during the week
following such day), or, if such rate shall not be so reported on such day
or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 a.m., New York City
time, on such day (or, if such day shall not be a Business Day, on the
next preceding Business Day) by the Administrative Agent from three New
York City negotiable certificate of deposit dealers of recognized standing
selected by it. If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Base CD Rate or the rate set forth in
clause (b) above or both for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in accordance
with the terms thereof, the Alternate Base Rate shall be determined without
regard to clause (b) or (c), or both, of the first sentence of this
definition, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to
a change in the Prime Rate, the Three-Month Secondary CD Rate or the rate
set forth in clause (b) shall be effective on the effective day of such
change in the such rate.
"Alternate Base Rate Loans": Revolving Credit Loans at
such time as they are made and/or being maintained at a rate of interest
based upon the Alternate Base Rate.
"Annualized Consolidated Cash Flow": as at the last day of
any fiscal quarter of the Company the Consolidated Cash Flow for the period
of four consecutive fiscal quarters ending on such day.
"Annualized Consolidated Interest Expense": as at the last
day of any fiscal quarter of the Company the Consolidated Interest Expense
for the period of four consecutive fiscal quarters ending on such day.
"Applicable Facility Fee Percentage": on any date, a rate
per annum equal to 0.06%.
<PAGE>
"Applicable Index Rate": in respect of any Competitive Loan
requested pursuant to an Index Rate Competitive Loan Request, the Eurodollar
Rate applicable to the Interest Period for such Competitive Loan.
"Applicable Margin": on any date with respect to the Loans
comprising any Eurodollar Loans, a rate per annum equal to 0.19%.
"Assessment Rate": for any day, the annual assessment rate
in effect on such day that is payable by a member of the Bank Insurance
Fund maintained by the Federal Deposit Insurance Corporation (the "FDIC")
classified as well-capitalized and within supervisory subgroup "B" (or a
comparable successor assessment risk classification) within the meaning
of 12 C.F.R. 327.4 (or any successor provision) to the FDIC (or any
successor) for the FDIC's (or such successor's) insuring time deposits
at offices of such institution in the United States.
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit J.
"Available Loan Commitment": as to any Lender, at a
particular time, an amount equal to such Lender's Commitment Percentage
multiplied by the difference between (a) the amount of the Loan
Commitments at such time and (b) the Aggregate Loans at such time;
collectively, as to all the Lenders, the "Available Loan Commitments."
"Board": the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"Borrowing Date": in respect of any Revolving Credit Loan,
the date on which such Revolving Credit Loan is made.
"Business Day": a day other than a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required by law to close.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of capital stock
of a corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options to
purchase any of the foregoing.
"Closing Date": the date on which the conditions in
Section 4 are satisfied in full, which shall be a Business Day which is on
or before the date of the initial Loans.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment Percentage": as to any Lender, the percentage
of the aggregate Loan Commitments constituted by such Lender's Loan
Commitment, set forth opposite such Lender's name on Schedule 1.1 hereto.
<PAGE>
"Commitment Period": the period from and including the
Closing Date to but not including the Maturity Date or such earlier date
as the Loan Commitments shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within the
meaning of Section 414(b) or (c) of the Code.
"Competitive Loan": each Competitive Loan made pursuant
to subsection 2.2; the aggregate amount advanced by a Competitive Loan
Lender pursuant to subsection 2.2 on each Competitive Loan Date shall
constitute one or more Competitive Loans, as specified by such Competitive
Loan Lender pursuant to subsection 2.2(b)(vi).
"Competitive Loan Assignees": as defined in subsection
9.6(c).
"Competitive Loan Assignment": a Competitive Loan
Assignment, substantially in the form of Exhibit I.
"Competitive Loan Confirmation": each confirmation by the
Company of its acceptance of Competitive Loan Offers, which Competitive
Loan Confirmation shall be substantially in the form of Exhibit D and
shall be delivered to the Administrative Agent in writing, by telex or by
facsimile transmission.
"Competitive Loan Date": each date on which a Competitive
Loan is made pursuant to subsection 2.2.
"Competitive Loan Lenders": Lenders from time to time
offering Competitive Loans.
"Competitive Loan Offer": each offer by a Competitive
Loan Lender to make Competitive Loans pursuant to a Competitive Loan
Request, which Competitive Loan Offer shall contain the information
specified in Exhibit C and shall be delivered to the Administrative Agent
by telephone, immediately confirmed by telex or facsimile transmission.
"Competitive Loan Request": each request by the Company
for Competitive Loan Lenders to submit bids to make Competitive Loans,
which shall contain the information in respect of such requested Competitive
Loans specified in Exhibit B and shall be delivered to the Administrative
Agent in writing, by telex or facsimile transmission, or by telephone,
immediately confirmed by telex or facsimile transmission.
"Consolidated Cash Flow": for any period, Consolidated
Net Income of the Company and its Subsidiaries for such period plus the
aggregate amounts deducted in determining such Consolidated Net Income
in respect of (i) Consolidated Interest Expense, (ii) amortization
expenses, (iii) depreciation expenses and (iv) income taxes, each of
clauses (i), (ii), (iii)and (iv) determined in accordance with GAAP, but
<PAGE>
after deducting in the calculation thereof, income representing equity in
the earnings of Affiliates not received in cash or, as the
case may be, after restoring thereto deductions representing equity in
the losses of Affiliates for which neither the Company nor any of its
Subsidiaries is liable.
"Consolidated Interest Expense": for any period, interest
expense of the Company and its Subsidiaries for such period, determined
on a consolidated basis in accordance with GAAP.
"Consolidated Net Income": for any period, the
consolidated net income (or deficit) of the Company and its Subsidiaries
for such period (taken as a cumulative whole), determined in accordance
with GAAP.
"Consolidated Net Worth": at a particular date, all
amounts which would be included under shareholders' equity on a
consolidated balance sheet of the Company and its Subsidiaries at such
date, determined in accordance with GAAP.
"Consolidated Total Capitalization": at a particular date,
the sum of Consolidated Net Worth and Consolidated Total Indebtedness.
"Consolidated Total Indebtedness": at a particular date,
all items which would, in conformity with GAAP, be classified as
Indebtedness on a consolidated balance sheet of the Company and its
Subsidiaries as at such date, but in any event including without any
duplication (a) indebtedness arising under acceptance facilities and the
face amount of all letters of credit issued for the account of the Company
or any Subsidiary and all drafts drawn thereunder, (b) all Indebtedness
secured by any Lien on any property owned by the Company or any Subsidiary
even though the Company or such Subsidiary has not assumed or otherwise
become liable for the payment thereof and (c) all Guarantee Obligations of
the Company and its Subsidiaries in respect of Indebtedness of other
Persons.
"Continuing Directors": the directors of the Company on
the Closing Date and each other director, if, in each case, such other
director's nomination for election to the board of directors of the
Company is recommended by at least a majority of the then Continuing
Directors.
"Contractual Obligation": as to any Person, any provision
of any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Decision Date": as defined in subsection 2.16(b).
"Default": any of the events specified in Section 7,
whether or not any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
<PAGE>
"Documentation Agent": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the
United States of America.
"ERISA": the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the maximum
rates (expressed as a decimal fraction) of reserve requirements in effect
on such day (including basic, supplemental, marginal and emergency reserves
under any regulations of the Board or other governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board) maintained by a member bank of
the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during
each Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined on the basis of the rate for deposits in Dollars for a period
equal to such Interest Period commencing on the first day of such Interest
Period appearing on Page 3750 of the Telerate screen as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest
Period. In the event that such rate does not appear on Page 3750 of the
Telerate screen (or otherwise on such screen), the "Eurodollar Base Rate"
shall be determined by reference to such other comparable publicly
available service for displaying eurodollar rates as may be selected by
the Administrative Agent or, in the absence of such availability, by
reference to the rate at which the Administrative Agent is offered Dollar
deposits at or about 11:00 A.M., New York City time, two Business Days
prior to the beginning of such Interest Period in the inter-bank
eurodollar market where its eurodollar and foreign currency and exchange
operations are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein.
"Eurodollar Loans": Loans the rate of interest applicable
to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula (rounded
upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in
Section 7, provided that any requirement for the giving of notice, the
lapse of time, or both, or any other condition, event or act has been
satisfied.
<PAGE>
"Existing Credit Agreement": as defined in the recitals
hereto.
"Facility Fee": as defined in subsection 2.4;
collectively, the "Facility Fees."
"Financing Lease": (a) any lease of property, real or
personal, the then present value of the minimum rental commitment under
which is required to be capitalized on a consolidated balance sheet of the
Company and its Subsidiaries in accordance with GAAP, and (b) any other
such lease to the extent that the obligations thereunder are capitalized
on a balance sheet of the lessee.
"GAAP": generally accepted accounting principles in the
United States of America in effect from time to time except that for
purposes of subsections 6.3 and 6.4, GAAP shall be determined on the basis
of such principles in effect on the date hereof and consistent with those
used in the preparation of the most recent audited financial statements
delivered pursuant to subsection 3.1.
"Governmental Authority": any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government.
"Guarantee Obligation": as to any Person, any obligation
of such Person guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations ("primary obligations") of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent (a) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (b) to
advance or supply funds (i) for the purchase or payment of any such
primary obligation or (ii) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or solvency
of the primary obligor, (c) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (d) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include endorsements
of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation
in respect of which such Guarantee Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect
thereof as determined by the Company in good faith.
"Indebtedness": of a Person, at a particular date, the
sum (without duplication) at such date of (a) indebtedness for borrowed
money (including, withoutlimitation, any indebtedness evidenced by any
note, bond, debenture or other instrument)or for the deferred purchase
price of property or services in respect of which such Person is liable,
as obligor, other than accounts payable for the deferred purchase price
of property or services incurred in the ordinary course of business and
which are not in excess of 90 days past the invoice or billing date, or
if in excess of 90 days past the invoice or billing date are being
contested in good faith by appropriate actions or
<PAGE>
or proceedings, (b)obligations of such Person under Financing Leases and
(c) any obligations of such Person in respect of letters of credit,
acceptances, or similar obligations issued or created for the account of
such Person.
"Index Rate Competitive Loan Request": any Competitive
Loan Request requesting the Competitive Loan Lenders to offer to make
Competitive Loans at an interest rate equal to the Applicable Index Rate
plus (or minus) a margin.
"Insolvency": with respect to any Multiemployer Plan,
the condition that such Plan is Insolvent within the meaning of such term
as used in Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any Alternate Base Rate Loan, the last
day of each March, June, September and December, commencing on the first
of such days to occur after Alternate Base Rate Loans are made, (b) as to
any Eurodollar Loan in respect of which the Company has selected an
Interest Period of one, two or three months, the last day of such Interest
Period and (c) as to any Eurodollar Loan in respect of which the Company
has selected a longer Interest Period than the periods described in clause
(b) above, the last day of each March, June, September and December falling
within such Interest Period and the last day of such Interest Period.
"Interest Period": (a) with respect to any Eurodollar
Loan, the period commencing on the Borrowing Date with respect to such
Eurodollar Loan and ending one, two, three or six months thereafter, as
selected by the Company in its notice of borrowing as provided in
subsection 2.1(d);
(b) with respect to any Alternate Base Rate Loan, the
period commencing on the Borrowing Date with respect to such Alternate
Base Rate Loan and ending on the earliest to occur of the last day of
March, June, September or December following such Borrowing Date;
(c) with respect to any Competitive Loan made pursuant
to a Competitive Loan Request, the period commencing on the Competitive
Loan Date with respect to such Competitive Loan and ending on the date
not less than 7 nor more than 180 days thereafter, as specified by the
Company in such Competitive Loan Request; provided that the foregoing
provisions are subject to the following:
(A) if any Interest Period pertaining to a Eurodollar
Loan or a Competitive Loan made pursuant to an Index Rate Competitive
Loan Request would otherwise end on a day which is not a Working Day,
that Interest Period shall be extended to the next succeeding Working
Day unless the result of such extension would be to carry such Interest
Period into another calendar month in which event such Interest Period
shall end on the immediately preceding Working Day;
<PAGE>
(B) any Interest Period pertaining to a Eurodollar Loan
that begins on the last Working Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Working Day of a
calendar month;
(C) if any Interest Period pertaining to an Alternate
Base Rate Loan or a Competitive Loan made pursuant to an Absolute Rate
Competitive Loan Request would otherwise end on a day which is not a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day;
(D) any Interest Period that would otherwise extend beyond
the Maturity Date shall end on such Maturity Date; and
(E) the Company shall select Interest Periods so as not to
require a prepayment of any Eurodollar Loan during an Interest Period for
such Loan.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any Financing Lease having
substantially the same economic effect as any of the foregoing, and the
filing of any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction in respect of any of the foregoing).
"Loan" and "Loans": the collective reference to the
Revolving Credit Loans and the Competitive Loans.
"Loan Commitment": as to any Lender, the obligation of
such Lender, if any, to make Revolving Credit Loans in an aggregate
principal amount not to exceed the amount set forth under the heading
"Loan Commitment" opposite such Lender's name on Schedule 1.1 or in the
Assignment and Acceptance pursuant to which such Lender became a party
hereto, as the same may be changed from time to time pursuant to the terms
hereof (including, without limitation, pursuant to the provisions of the
second sentence of subsection 2.1(a)). The original aggregate amount of
the Loan Commitments is $400,000,000.
"Margin Stock": "margin stock" as such term is defined in
Regulation U of the Board of Governors of the Federal Reserve System.
"Maturity Date": at any time, the date that is one year
after the Termination Date then in effect.
"Moody's": Moody's Investors Service, Inc.
<PAGE>
"Multiemployer Plan": a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Notes": the collective reference to any promissory notes
evidencing Loans.
"Other Taxes": any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution,
delivery or enforcement of, or otherwise with respect to,
this Agreement or any Note.
"Participants": as defined in subsection 9.6(b).
"Payment Sharing Notice": a written notice from the Company,
or any Lender, informing the Administrative Agent that an Event of Default
has occurred and is continuing and directing the Administrative Agent to
allocate payments thereafter received from the Company in accordance with
subsection 2.11(c).
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature.
"Plan": at any particular time, any employee benefit plan
which is covered by ERISA and in respect of which the Company or a
Commonly Controlled Entity is (or, if such plan were terminated at such
time, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Prime Rate": the rate of interest publicly announced by
The Chase Manhattan Bank in New York, New York from time to time as its
prime rate. The Prime Rate is not intended to be the lowest rate of
interest charged by The Chase Manhattan Bank in connection with extensions
of credit to debtors.
"Purchasing Lenders": as defined in subsection 9.6(d).
"Ratings": the ratings of Moody's and S&P applicable to
the Company's senior unsecured non-credit-enhanced long-term debt
obligations.
"Refunding Borrowing": a borrowing of Revolving Credit
Loans which, after application of the proceeds thereof, results in no net
increase in the aggregate outstanding principal amount of Revolving Credit
Loans made by any Lender.
"Register": as defined in subsection 9.6(e).
<PAGE>
"Reorganization": with respect to any Multiemployer Plan,
the condition that such Plan is in reorganization within the meaning of
such term as used in Section 4245 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder.
"Required Lenders": at any date, Lenders having Loan
Commitments aggregating over one-half of the total Loan Commitments (or,
at any time the Loan Commitments have expired or terminated, the Lenders
having over one-half of the total Loans then outstanding).
"Requirement of Law": as to any Person, the Certificate
of Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination of
an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"Reserve Percentage": for any day, that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by
the Board of Governors of the Federal Reserve System (or any successor),
for determining the maximum reserve requirement for
a Depository Institution (as defined in Regulation D of such Board as in
effect from time to time) in respect of new non-personal time deposits in
Dollars having a maturity of 30 days or more.
"Responsible Officer": the Chief Executive Officer or the
President of the Company or, with respect to financial matters, the Chief
Financial Officer of the Company.
"Revolving Credit Loans": Loans made pursuant to
subsection 2.1;individually a "Revolving Credit Loan."
"S&P": Standard & Poor's Corporation.
"Single Employer Plan": any Plan which is not a
Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership, limited
liability company or other entity are at the time owned, or the management
of which is otherwise controlled, directly or indirectly through one or
more intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to Subsidiaries"
in this Agreement shall refer to a Subsidiary or Subsidiaries of the
Company.
"Syndication Agent": as defined in the preamble hereto.
<PAGE>
"Termination Date": June 27, 2000 or such earlier date on
which the Loan Commitments are terminated, or such later date to which the
Termination Date shall be extended pursuant to subsection 2.16 hereof.
"Transfer Effective Date": as defined in each Assignment
and Acceptance.
"Transferees": as defined in subsection 9.6(g).
"Type": as to any Revolving Credit Loan, its nature as an
Alternate Base Rate Loan or a Eurodollar Loan.
"Utilization Fee": as defined in subsection 2.4(b).
"Working Day": any day on which dealings in foreign
currencies and exchange between banks may be carried on in London, England
and in New York, New York.
1.2 Other Definitional Provisions.
(a) Unless otherwise specified herein, all terms defined
in this Agreement shall have the defined meanings when used in any Notes
or any certificate or otherdocument made or delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate
or other document made or delivered pursuant hereto or thereto, (i)
accounting terms relating to the Company and its Subsidiaries not defined
in subsection 1.1 and accounting terms partly defined in
subsection 1.1, to the extent not defined, shall have the respective
meanings given to them under GAAP, (ii) the words "include," "includes"
and "including" shall be deemed to be followed by the phrase "without
limitation," (iii) the word "incur" shall be construed to mean incur,
create, issue, assume or become liable in respect of (and the words
"incurred" and "incurrence" shall have correlative meanings), and (iv)
the words "asset" and "property" shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, Capital Stock, securities,
revenues, accounts, leasehold interests and contract rights.
(c) The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of
this Agreement, and section, subsection, schedule and exhibit references
are to this Agreement unless otherwise specified.
SECTION 2. AMOUNT AND TERMS OF LOAN COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the
terms and conditions hereof, each Lender severally agrees to make
revolving credit loans (individually a "Revolving Credit Loan") to the
Company from time to time during the Commitment Period in an aggregate
principal amount at any one time outstanding not to exceed the amount of
such Lender's Loan Commitment; provided that no Revolving Credit Loan
<PAGE>
shall be made hereunder which would result in the Aggregate Loans
outstanding hereunder being in excess of the Loan Commitments then in
effect. During the Commitment Period the Company may use the Loan
Commitments by borrowing, prepaying the Revolving Credit Loans in whole
or in part, and re-borrowing, all in accordance with the terms and
conditions hereof, provided, that the Loan Commitments shall be reduced
on the Termination Date to an amount equal to the amount of the
Aggregate Loans then outstanding and, if the Aggregate Loans shall at
any time or from time to time be reduced thereafter, the Loan Commitments
shall be reduced pro rata simultaneously by an amount equal to such
reduction in the Aggregate Loans, and provided, further, that on and
after the Termination Date, no Revolving Credit Loans may be made which
are not Refunding Borrowings or Revolving Credit Loans the proceeds of
which are used to repay maturing Competitive Loans.
(b) No Eurodollar Loan shall be made after the date that
is 30 days prior to the Maturity Date.
(c) Each Revolving Credit Loan shall finally mature on
the Maturity Date. Each Revolving Credit Loan shall bear interest on the
unpaid principal amount thereof from time to time outstanding at the
applicable interest rate per annum determined as provided in, and shall
be payable on the dates specified in, subsections 2.8 and 2.9.
(d) The Company may borrow under the Loan Commitments
during the Commitment Period on any Working Day if the borrowing is a
Eurodollar Loan or on any Business Day if the borrowing is an Alternate
Base Rate Loan; provided that the Company shall give the Administrative
Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 10:00 A.M., New York City time, (a) 3
Working Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, and (b) 1 Business Day prior to the requested Borrowing
Date, in the case of Alternate Base Rate). Each such notice shall be
given in writing, by telex or by facsimile transmission substantially
in the form of Exhibit A (with appropriate insertions) or shall be
given by telephone (specifying the information set forth in Exhibit A)
promptly confirmed by notice given in writing, by telex or by
facsimile transmission substantially in the form of Exhibit A
(with appropriate insertions). Each borrowing pursuant to the Loan
Commitments shall be in an aggregate principal amount equal to (a) the
lesser of, in the case of Alternate Base Rate Loans, (i) $10,000,000 or
a whole multiple of $1,000,000 in excess thereof, and (ii) the Available
Loan Commitments and (b) in the case of Eurodollar Loans, $10,000,000
or a whole multiple of $1,000,000 in excess thereof. Upon receipt of
such notice from the Company the Administrative Agent shall promptly
notify each Lender thereof. Each Lender will make the amount of its
share of each borrowing available to the Administrative Agent for the
account of the Company at the office of the Administrative Agent set forth
in subsection 9.2 at or before 11:00 A.M. on the Borrowing Date requested
by the Company in funds immediately available to the Administrative Agent
as the Administrative Agent may direct. The proceeds of all such Loans
will then be made available to the Company
<PAGE>
by the Administrative Agent at the office of the Administrative Agent
specified in subsection 9.2 by crediting the account of the Company on
the books of such office of the Administrative Agent with the aggregate
of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
(e) If any Lender makes a Revolving Credit Loan on a day
on which the Company is to repay all or any part of any outstanding
Revolving Credit Loan from such Lender, such Lender shall apply the
proceeds of the requested Revolving Credit Loan to make such repayment,
and only an amount equal to the difference (if any) between the amount
being borrowed and the amount being repaid shall be made available by
such Lender to the Administrative Agent as provided in paragraph (c)
above, or remitted by the Company to the Administrative Agent for
the account of such Lender as provided in subsection 2.6, as the case
may be.
2.2 The Competitive Loans. (a) The Lenders may make
Competitive Loans to the Company from time to time on any Business Day
(in the case of Competitive Loans made pursuant to an Absolute Rate
Competitive Loan Request) or any Working Day (in the case of Competitive
Loans made pursuant to an Index Rate Competitive Loan Request) during the
period from the Closing Date until the date occurring 14 days prior to the
Maturity Date in the manner set forth in this subsection 2.2 and in
amounts such that the Aggregate Loans at any time outstanding shall not
exceed the aggregate amount of the Loan Commitments at such time; provided,
however, that the aggregate principal amount of the
outstanding Competitive Loans of a Lender may (but shall not be required
to) exceed its Loan Commitment.
(b) (i) The Company shall request Competitive Loans by
delivering a Competitive Loan Request to the Administrative Agent, not
later than 12:00 Noon(New York City time) four Working Days prior to the
proposed Competitive Loan Date (in the case of an Index Rate Competitive
Loan Request), and not later than 10:00 A.M. (New York City time) one
Business Day prior to the proposed Competitive Loan Date (in the case
of an Absolute Rate Competitive Loan Request); provided that (i) an
Index Rate Competitive Loan request shall not be made until at least
one Business Day has passed since the most recent Competitive Loan Date
and (ii) an Absolute Rate Competitive Loan Request shall not be made
until at least four Business Days have passed since the most recent
Competitive Loan Date. Each Competitive Loan Request may solicit bids
for Competitive Loans in an aggregate principal amount of $10,000,000
or an integral multiple in excess of $1,000,000 thereof and for not more
than three alternative maturity dates for such Competitive Loans. The
maturity date for each Competitive Loan shall be not less than 7 days
nor more than 180 days after the Competitive Loan Date therefor (and in
any event not after the Maturity Date and in any event subject to the
proviso to the definition of "Interest Period"). The Administrative Agent
shall promptly notify each Competitive Loan Lender by promptly notify each
Competitive Loan Lender by telex or facsimile transmission
of the contents of each Competitive Loan Request received by it.
(ii) In the case of an Index Rate Competitive Loan Request, upon receipt
of notice from the Administrative Agent of the contents of such
Competitive Loan Request,any Competitive Loan Lender that elects, in its
sole discretion, to do so, shall irrevocably offer to make one or more
Competitive Loans at the Applicable Index Rate plus or minus a margin for
each such Competitive Loan determined by such Competitive Loan Lender in
its sole discretion. Any such irrevocable offer shall be
made by delivering a Competitive Loan Offer to the Administrative Agent,
before 10:30 A.M. (New York City time) three Working Days before the
proposed Competitive Loan Date, setting forth the maximum amount of
Competitive Loans for each maturity date, and the aggregate maximum amount
for all maturity dates, which such Lender would be willing to make (which
amounts may, subject to subsection 2.2(a), exceed such Competitive Loan
Lender's Loan Commitment) and the margin above or below the Applicable
Index Rate at which such Competitive Loan Lender is willing to make each
such Competitive Loan; the Administrative Agent shall advise the Company
before 11:15 A.M. (New York City time) three
Working Days before the proposed Competitive Loan Date, of the contents of
each such Competitive Loan Offer received by it. If the Administrative
Agent in its capacity as a Competitive Loan Lender shall, in its sole
discretion, elect to make any such offer, it shall advise the Company of
the contents of its Competitive Loan Offer before 10:15 A.M. (New York
City time) three Working Days before the proposed Competitive Loan Date.
(iii) In the case of an Absolute Rate Competitive Loan
Request, upon receipt of notice from the Administrative Agent of the
contents of such Competitive Loan Request, any Competitive Loan Lender
that elects, in its sole discretion, to do so, shall irrevocably
offer to make one or more Competitive Loans at a rate or rates of
interest for each such Competitive Loan determined by such Competitive
Loan Lender in its sole discretion. Any such irrevocable offer shall
be made by delivering a Competitive Loan Offer to the Administrative
Agent, before 9:30 A.M. (New York City time) on the proposed Competitive
Loan Date, setting forth the maximum amount of Competitive Loans for each
maturity date, and the aggregate maximum amount for all maturity dates,
which such Competitive Loan Lender would be willing to make (which amounts
may, subject to subsection 2.2(a), exceed such Competitive Loan Lender's
Loan Commitment) and the rate or rates of interest at which such
Competitive Loan Lender is willing to make each such Company before 10:15
A.M. (New York City time) on the proposed Competitive Loan Date of the
contents of each such Competitive Loan Offer received by it. If the
Administrative Agent in its capacity as a Competitive Loan Lender shall,
in its sole discretion, elect to make any such offer, it shall advise the
Company of the contents of its Competitive Loan Offer before 9:15 A.M.
(New York City time) on the proposed Competitive Loan Date.
(iv) The Company shall before 11:30 A.M. (New York City
time) three Working Days before the proposed Competitive Loan Date (in
the case of Competitive Loans requested by an Index Rate Competitive
<PAGE>
requested by an Index Rate Competitive Loan Request) and before 10:30 A.M.
(New York City time) on the proposed Competitive Loan Date (in the case of
Competitive Loans requested by an Absolute Rate Competitive Loan Request)
either, in its absolute discretion:
(A) cancel such Competitive Loan Request by giving the
Administrative Agent telephone notice to that effect, or
(B) accept one or more of the offers made by any
Competitive Loan Lender or Competitive Loan Lenders pursuant to clause
(ii) or clause (iii) above, as the case may be, by giving telephone notice
to the Administrative Agent (immediately confirmed by delivery to the
Administrative Agent of a Competitive Loan Confirmation) of the amount
of Competitive Loans for each relevant maturity date to be made by each
Competitive Loan Lender (which amount for each such maturity date shall
be equal to or less than the maximum amount for such
maturity date specified in the Competitive Loan Offer of such Competitive
Loan Lender, and for all maturity dates included in such Competitive
Loan Offer shall be equal to or less than the aggregate maximum amount
specified in such Competitive Loan Offer for all such
maturity dates) and reject any remaining offers made by Competitive
Loan Lenders pursuant to clause (ii) or clause (iii) above, as the case
may be; provided, however, that (x) the Company may not accept offers
for Competitive Loans for any maturity date in an aggregate principal
amount in excess of the maximum principal amount requested in the
related Competitive Loan Request, (y) if the Company accepts any of
such offers, it must accept offers strictly based upon pricing for
such relevant maturity date and no other criteria whatsoever and (z)
if two or more Competitive Loan Lenders submit offers for any maturity
date at identical pricing and the Company accepts any of such offers
but does not wish to borrow the total amount offered by such
Competitive Loan Lenders with such identical pricing, the Company
shall accept offers from all of such Competitive Loan enders in
amounts allocated among them pro rata according to the amounts
offered by such Competitive Loan Lenders (or as nearly pro rata as
shall be practicable after giving effect to the requirement that any
Competitive Loans made by a Competitive Loan Lender on a Competitive
Loan Date for each relevant maturity date shall be in a principal
amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof, it being agreed that to the extent that it is impossible to
make allocations in accordance with the provisions of this clause (B)
such allocations shall be made in accordance with the instructions of
the Company.
(v) If the Company notifies the Administrative Agent that
a Competitive Loan Request is cancelled pursuant to clause (iv) (A) above,
the Administrative Agentshall give prompt telephone notice thereof to the
Competitive Loan Lenders, and the Competitive Loans requested thereby
shall not be made.
(vi) If the Company accepts pursuant to clause (iv) (B)
above one or more of the offers made by any Competitive Loan Lender or
Competitive Loan Lenders, the Administrative Agent shall promptly notify
each Competitive Loan Lender which has made such an offer, of the aggregate
amount of such Competitive Loans to be made on such Competitive Loan Date
for each maturity date and of the acceptance or rejection of any offers to
make such Competitive Loans made by such Competitive Loan Lender. Each
Competitive Loan Lender which is
<PAGE>
to make a Competitive Loan shall, before 12:00 Noon (New York City time)
on the Competitive Loan Date specified in the Competitive Loan Request
applicable thereto, make available to the Administrative Agent at its
office set forth in subsection 9.2 the amount of Competitive Loans to
be made by such Competitive Loan Lender, in immediately available funds.
The Administrative Agent will make such funds available to the Company
as soon as practicable on such date at the Administrative Agent's
aforesaid address. As soon as practicable after each Competitive Loan
Date, the Administrative Agent shall notify each Lender of the aggregate
amount of Competitive Loans advanced on such Competitive Loan Date and the
respective maturity dates thereof.
(c) Within the limits and on the conditions set forth in
this subsection 2.2,the Company may from time to time borrow under this
subsection 2.2, repay pursuant to paragraph (d) below, and re-borrow under
this subsection 2.2.
(d) The Company shall repay to the Administrative Agent
for the account of each Competitive Loan Lender which has made a
Competitive Loan (or the Competitive Loan Assignee in respect thereof, as
the case may be) on the maturity date of each Competitive Loan (such
maturity date being that specified by the Company for repayment of such
Competitive Loan in the related Competitive Loan Request) the then unpaid
principal amount of such Competitive Loan. The Company shall not have
the right to prepay any principal amount of any Competitive Loan.
(e) The Company shall pay interest on the unpaid
principal amount of each Competitive Loan from the Competitive Loan Date
to the stated maturity date thereof, at the rate of interest determined
pursuant to paragraph (b) above (calculated on the basis of a 360 day year
for actual days elapsed), payable on the interest payment date or dates
specified by the Company for such Competitive Loan in the related
Competitive Loan Request. If all or a portion of the principal amount of
any Competitive Loan shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue principal amount
shall, without limiting any rights of any Lender under this Agreement,
bear interest from the date on which such payment was due at a rate per
annum which is 2% above the rate which would otherwise be applicable
thereto until the scheduled maturity date with respect thereto, and for
each day thereafter at a rate per annum which is 2% above the Alternate
Base Rate until paid in full (as well after as before judgment).
2.3 Type of Revolving Credit Loans. The Revolving Credit
Loans may be (i) Eurodollar Loans, (ii) Alternate Base Rate Loans or (iii)
a combination thereof. Each borrowing of Revolving Credit Loans shall be
in an aggregate principal amount of $10,000,000 or a whole multiple of
$1,000,000 in excess thereof.
2.4 Fees. (a) The Company agrees to pay, in immediately
available funds,to the Administrative Agent for the account of each Lender
a facility fee (a "Facility Fee") for the period from and including the
date of this Agreement to, but excluding, the Maturity Date, payable
quarterly in arrears on the last day of each March, June, September and
December and on the Maturity Date, (or such earlier
<PAGE>
date on which the Loan Commitments shall terminate and the Loans and all
interest, fees and other amounts in respect thereof shall have been paid
in full), commencing on the first of such dates to occur after the date
hereof, at a rate per annum equal to the Applicable Facility Fee
Percentage from time to time in effect on each Lender's portion of the
daily average Loan Commitments in effect, whether used or unused, during
the period for which payment is being made.
(b) The Company agrees to pay to the Administrative Agent
for the account of each Lender a fee (the "Utilization Fee") based upon the
average daily amount of the outstanding Loans at a rate per annum equal to
0.05%, when and for as long as the aggregate outstanding principal amount
of the Loans exceeds 50% of (i) until the Termination Date, the aggregate
amount of the Loan Commitments and (ii) from the Termination Date through
the Maturity Date, the aggregate amount of the Loan Commitments in effect
on the Termination Date immediately prior to giving effect to any reduction
thereof required to occur on such date pursuant to the first proviso of the
second sentence of subsection 2.1(a). The Utilization Fee shall be payable
quarterly in arrears on the last day of each March, June, September and
December, commencing on the first of such dates to occur after the date
hereof, and on the Maturity Date (or such earlier date on which the Loan
Commitments shall terminate and the Loans and all interest, fees and other
amounts in respect thereof shall have been paid in full).
2.5 Termination or Reduction of Loan Commitments. The
Company shallhave the right, upon not less than 5 Business Days' notice
to the Administrative Agent, to terminate the Loan Commitments or, from
time to time, to reduce pro rata the amount of the Loan Commitments,
provided that (a) any such reduction shall be accompanied by prepayment
of the Revolving Credit Loans, together with accrued interest on the
amount so prepaid to the date of such prepayment, to the extent, if any,
that the amount of the Revolving Credit Loans then outstanding exceeds
the amount of the Loan Commitments as then reduced, (b) any such
termination of the Loan Commitments shall be accompanied by prepayment
in full of the Revolving Credit Loans then outstanding, together with
accrued interest thereon to the date of such prepayment, and the payment
of any unpaid Facility Fee or Utilization Fee then accrued hereunder and
(c) any termination of the Loan Commitments while Eurodollar Loans are
outstanding and any reduction of the aggregate amount of the Loan
Commitments that reduces the amount of the Loan Commitments below the
principal amount of the Eurodollar Loans then outstanding may be made
only on the last day of the respective Interest Periods for such
Eurodollar Loans. Any such reduction shall be in an amount of $10,000,000
or a whole multiple thereof, and shall reduce permanently the amount of
the Loan Commitments then in effect.
2.6 Repayment of Loans. Subject to subsection 2.1(e),
the Company will pay to the Administrative Agent for the account of each
Lender the unpaid principal amount of each Revolving Credit Loan made by
such Lender, plus all interest accrued thereon, on the last day of the
Interest Period applicable thereto.
2.7 Optional Prepayments. (a) The Company may on the last
day of the relevant Interest Period if the Loans to be prepaid are in
whole or in part Eurodollar Loans, or at any time and from time to time
if the Loans to be prepaid are Alternate Base Rate Loans, prepay the
<PAGE>
Revolving Credit Loans, in whole or in part, without premium or penalty,
upon at least three Business Days' (in the case of Eurodollar Loans) or
one Business Day's (in the case of Alternate Base Rate Loans) irrevocable
notice to the Administrative Agent, specifying the date and amount of
prepayment and whether the prepayment is of Eurodollar Loans or Alternate
Base Rate Loans or a combination thereof, and if of a combination thereof,
the amount of prepayment allocable to each. Upon receipt of such notice
the Administrative Agent shall promptly notify each Lender thereof.
If such notice is given, the Company shall make such prepayment, and
the payment amount specified in such notice shall be due and payable on
the date specified therein. Partial prepayments shall be in an aggregate
principal amount of $10,000,000 or a whole multiple thereof, and may
only be made if, after giving effect thereto, subsection 2.7(c) shall
not have been contravened.
(b) The Company may not prepay Competitive Loans.
(c) All payments and prepayments hereunder shall be in
such amounts and be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of the Revolving Credit
Loans which are Eurodollar Loans having the same Interest Period shall
not be less than $10,000,000.
2.8 Interest Rate and Payment Dates. (a) The Eurodollar
Loans shall bear interest for each Interest Period with respect thereto on
the unpaid principal amount thereof at a rate per annum equal to the
Eurodollar Rate determined for such Interest Period plus the Applicable
Margin.
(b) Alternate Base Rate Loans shall bear interest for the
period from and including the date thereof until maturity on the unpaid
principal amount thereof at a rate per annum equal to the Alternate Base
Rate.
(c) (i) If all or a portion of the principal amount of
any Loan shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at
a rate per annum equal to the rate that would otherwise be applicable
thereto pursuant to the foregoing provisions of this subsection 2.8 plus
2%, and (ii) if all or a portion of any interest payable on any Loan or
any commitment fee or other amount payable hereunder shall not be paid
when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum equal to the
rate then applicable to Alternate Base Rate Loans plus 2%, in each case,
with respect to clauses (i) and (ii) above, from the date of such
non-payment until such amount is paid in full (as well after as before
judgment).
(d) Interest shall be payable in arrears on each
Interest Payment Date,provided that interest accruing pursuant to paragraph
(c) of this subsection 2.8 shall be payable from time to time on demand.
2.9 Computation of Interest and Fees. (a) All interest
in respect of Alternate Base Rate Loans shall be calculated on the basis
of a 360 day year for the actual days elapsed, except where the applicable
<PAGE>
interest rate for such Loan is the Prime Rate, in which case the rate per
annum shall be computed on the basis of a 365 (or 366 as the case
may be) day year for the actual days elapsed. Facility Fees, Utilization
Fees and interest in respect of Eurodollar Loans shall be calculated on
the basis of a 360 day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Company
and the Lenders of each determination of a Eurodollar Rate. Any change in
the interest rate on a Loan resulting from a change in the Alternate Base
Rate, the Applicable Margin or the Reserve Percentage shall become
effective as of the opening of business on the day on which such change
in the Alternate Base Rate is announced or such Applicable Margin
changes as provided herein or such change in the Reserve Percentage shall
become effective. The Administrative Agent shall as soon as practicable
notify the Company and the Lenders of the effective date and the amount
of each such change.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall
be conclusive and binding on the Company and the Lenders in the absence
of manifest error. The Administrative Agent shall, at the request of the
Company, deliver to the Company a statement showing the quotations used
by the Administrative Agent in determining any interest rate pursuant to
subsection 2.8 (a) or (c).
2.10 Inability to Determine Interest Rate. (a) In the
event that the administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Company) that by
reason of circumstances affecting the interbank eurodollar market,
adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate for any requested Interest Period with respect to proposed Loans that
the Company has requested be made as Eurodollar Loans, the Administrative
Agent shall forthwith give telex or facsimile notice of such determination,
confirmed in writing, to the Company and the Lenders at least one day prior
to the requested Borrowing Date for such Eurodollar Loans. If such notice
is given any requested Eurodollar Loans shall be made as Alternate Base
Rate Loans. Until such notice has been withdrawn by the Administrative
Agent, no further Eurodollar Loans shall be made.
(b) In the event that the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon the
Company) that by reason of circumstances affecting the interbank eurodollar
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for any Interest Period with respect to proposed
Competitive Loans to be made pursuant to an Index Rate Competitive Loan
Request, the Administrative Agent shall forthwith give telex, telecopy
or telephone notice of such determination, confirmed in writing, to the
Company and the Lenders at least two Business Days prior to the proposed
Competitive Loan Date, and such Competitive Loans shall not be made on
such Competitive Loan Date. Until any such notice has been withdrawn by
the Administrative Agent, no further Index Rate Competitive Loan Requests
shall be submitted by the Company.
2.11 Pro Rata Borrowings and Payments. (a) Each
borrowing by the Company of Revolving Credit Loans shall be made ratably
from the Lenders in accordance with their Commitment Percentages.
<PAGE>
(b) Whenever any payment received by the Administrative
Agent under this Agreement is insufficient to pay in full all amounts then
due and payable to the Administrative Agent and the Lenders under this
Agreement, and the Administrative Agent has not received a Payment Sharing
Notice (or if the Administrative Agent has received a Payment Sharing
Notice but the Event of Default specified in such Payment Sharing Notice
has been cured or waived), such payment shall be distributed and applied
by the Administrative Agent and the Lenders in the following order:
first, to the payment of fees and expenses due and payable to the
Administrative Agent, acting as Administrative Agent for the benefit of
the Lenders, under and in connection with this Agreement; second, to the
payment of all expenses due and payable under subsection 9.5, ratably
among the Lenders in accordance with the aggregate amount of such payments
owed to each such Lender; third, to the payment of fees due and payable
under subsection 2.4, ratably among the Lenders in accordance with their
Commitment Percentages; fourth, to the payment of interest then due and
payable under this Agreement, ratably among the Lenders in accordance with
the aggregate amount of interest owed to each such Lender; and fifth, to
the payment of the principal amount of the Loans which is then due and
payable, ratably among the Lenders in accordance with the aggregate
principal amount owed to each such Lender.
(c) After the Administrative Agent has received a Payment
Sharing Notice which remains in effect, all payments received by the
Administrative Agent under this Agreement shall be distributed and applied
by the Administrative Agent and the Lenders in the following order:
first, to the payment of all amounts described in clauses first through
third of the foregoing paragraph (b), in the order set forth therein;
and second, to the payment of the interest accrued on and the principal
amount of all of the Loans, regardless of whether any such amount is then
due and payable, ratably among the Lenders in accordance with the
aggregate accrued interest plus the aggregate principal amount owed to
such Lender.
(d) All payments (including prepayments) to be made by
the Company on account of principal, interest and fees shall be made
without set-off or counterclaim and shall be made to the Administrative
Agent for the account of the Lenders at the Administrative Agent's office
specified in subsection 9.2 in Dollars and in immediately available funds.
The Administrative Agent shall distribute such payments to the Lenders
entitled thereto promptly upon receipt in like funds as received.
If any payment hereunder of fees or principal of or interest on Alternate
Base Rate Loans or Competitive Loans made pursuant to an Absolute Rate
Competitive Loan Request, becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding
Business Day, and, with respect to payments of principal, interest thereon
shall be payable during such extension at the rate then applicable
thereunder.
2.12 Taxes. (a) All payments made by the Company under
this Agreement shall be made free and clear of, and without deduction or
withholding for or on account of,any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductios or
<PAGE>
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding net income taxes and
franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender as a result of a present or former
connection between the Administrative Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent
or such Lender having executed, delivered or performed its obligations
or received a payment under, or enforced, this Agreement or any Note).
If any such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions or withholdings ("Non-Excluded Taxes") or Other Taxes
are required to be withheld from any amounts payable to the
Administrative Agent or any Lender hereunder, the amounts so payable
to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender
(after payment of all Non-Excluded Taxes and Other Taxes) interest or
any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement, provided, however, that the Company shall
not be required to increase any such amounts payable to any Lender with
respect to any Non-Excluded Taxes (i) that are attributable to such
Lender's failure to comply with the requirements of paragraph (d) or (e)
of this subsection 2.12 or failure to obtain either U.S. Internal Revenue
Service Form 4224 or U.S. Internal Revenue Service Form 1001 or any
applicable successor form from any Transferee that is a Participant or
a Competitive Loan Assignee certifying that such Participant is entitled
to receive payments under this Agreement without deduction or withholding
of any United States federal income taxes or (ii) that are United States
withholding taxes imposed on amounts payable to such Lender at the time
the Lender becomes a party to this Agreement, except to the extent that
such Lender's assignor (if any) was entitled, at the time of assignment,
to receive additional amounts from the Company with respect to such
Non-Excluded Taxes pursuant to this paragraph.
(b) In addition, the Company shall pay any Other Taxes
to the relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are
payable by the Company, as promptly as possible thereafter the Company
shall send to the Administrative Agent for its own account or for the
account of the relevant Lender, as the case may be, a certified copy of
an original official receipt received by the Company, or other evidence
of payment reasonably satisfactory to the Administrative Agent, showing
payment thereof. If the Company fails to pay any Non-Excluded Taxes or
Other Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other
required documentary evidence, the Company shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest
or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure.
<PAGE>
(d) (i) Each Lender (or Transferee) that is not a
citizen or resident of the United States of America, a corporation,
partnership or other entity created or organized in or under the laws
of the United States of America (or any jurisdiction thereof), or any
estate or trust that is subject to federal income taxation regardless
of the source of its income (a "Non-U.S. Lender") shall deliver to the
Company and the Administrative Agent (or, in the case of a Participant,
to the Lender from which the related participation shall have been
purchased, and in the case of a Competitive Loan Assignee, to the Lender
from which the related Competitive Loan shall have been assigned) two
copies of (A) either (1) U.S. Internal Revenue Service Form 1001 or Form
4224, or (2) in the case of a Non-U.S. Lender that does not meet the
requirements of the documents described in clause (1) hereof claiming
exemption from U.S. federal withholding tax under Section 871(h) or 881(c)
of the Code with respect to payments of "portfolio interest," a statement
substantially in the form of Exhibit E and (B) a Form W-8 or W-9,
including, where applicable, with respect to both clauses (1) and (2)
above, any such forms required to be provided to certify to such
exemption on behalf of such Non-U.S. Lender's beneficial owners, or, in
each case, any subsequent versions thereof or successors thereto, properly
completed and duly executed by such Non-U.S. Lender claiming complete
exemption from, or a reduced rate of, U.S. federal withholding tax on all
payments by the Company under this Agreement and any Notes. Such forms
shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant,
on or before the date such Participant purchases the related participation,
and in the case of a Competitive Loan Assignee, on or before the date of
such Competitive Loan Assignment). In addition, each Non-U.S. Lender
shall deliver such forms (and, where applicable, any such forms on behalf
of its beneficial owners) promptly upon the obsolescence or invalidity
of any form previously delivered by such Non-U.S. Lender. Each Non-U.S.
Lender shall promptly notify the Company at any time it determines that
it is no longer in a position to provide any previously delivered
certificate to the Company (or any other form of certification adopted
by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required
to deliver any form pursuant to this paragraph that such Non-U.S. Lender
is not legally able to deliver.
(ii) Each Lender which is not a Non-U.S. Lender shall
deliver to the Company and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have
been purchased, and in the case of a Competitive Loan Assignee, to the
Lender from which the related Competitive Loan shall have been assigned)
two copies of a statement which shall contain the address of such Lender's
office or place of business in the United States and shall be signed by
an authorized officer of such Lender, together with two duly completed
copies of Form W-9 (or any applicable successor form) unless it establishes
to the satisfaction of the Company that it is otherwise eligible for an
exemption from backup withholding tax or other applicable withholding tax.
Each such Lender shall deliver to the Company and the Administrative Agent
(or, in the case of a Participant, to the Lender from which the related
participation shall have been purchased, and in the case of a Competitive
Loan Assignee, to the Lender from which the related Competitive Loan shall
have been assigned) two further duly completed and signed forms and
statements (or successor forms) at or before the time any such form or
statement becomes obsolete.
<PAGE>
(iii) Each Lender agrees to indemnify and hold harmless
the Company and the Administrative Agent from and against any taxes
imposed by or on behalf of the United States or any taxing jurisdiction
thereof, penalties, additions to tax, fines, interest or other liabilities,
costs or losses, including, without limitation, reasonable attorney's fees
and expenses incurred or payable by the Company or the Administrative Agent
as a result of the failure of the Company or the Administrative Agent to
comply with its obligations to deduct or withhold any taxes imposed by
or on behalf of the United States or any taxing jurisdiction thereof
(including penalties, additions to tax, fines or interest on such taxes)
from any payments made pursuant to this Agreement which failure resulted
from the Company's or the Administrative Agent's reliance on any
representation, covenant, form, statement, certificate or other information
provided to it by such Lender pursuant to this subsection 2.12(d).
(e) A Lender that is entitled to an exemption from or
reduction of non-U.S.withholding tax under the law of the jurisdiction in
which the Company is located, or any treaty to which such jurisdiction is
a party, with respect to payments under this Agreement shall deliver to
the Company (with a copy to the Administrative Agent), at the time or
times prescribed by applicable law or reasonably requested by the Company,
such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without
withholding or at a reduced rate, provided that such Lender is legally
entitled to complete, execute and deliver such documentation and in such
Lender's reasonable judgment such completion, execution or submission
would not materially prejudice the legal position of such Lender
(f) Without limiting the other provisions of this
subsection 2.12, each Lender claiming entitlement to additional amounts
under this subsection 2.12 agrees to use reasonable efforts, including
designating a different lending office for funding or booking
its Loans hereunder, to avoid or to minimize any amounts which might
otherwise be payable pursuant to this subsection; provided, however,
that such efforts shall not cause the imposition on such Lender of any
additional costs or legal or regulatory burdens deemed in the sole
reasonable judgment of such Lender to be material.
(g) If any Lender or Participant identifies a refund of
or credit with respect to an amount of taxes with respect to which the
Company paid to or on behalf of such Lender an additional amount pursuant
to this subsection 2.12 (a "Tax Credit"), the Lender shall promptly
notify the Company of such Tax Credit. The Lender shall use commercially
reasonable efforts to take such action as, in the sole reasonable
discretion of the Lender, is then practicable under the circumstances
to give the benefit of such Tax Credit to the Company.
(h) The Company shall be permitted to replace any
Lender that (i) requests reimbursement for amounts owing pursuant
to subsection 2.12(a) or 2.14 or (ii) defaults in its obligation to
make Loans hereunder, with a replacement financial institution;
provided that (A) such replacement does not conflict with any
Requirement of Law, (B) no Event of Default shall have occurred
and be continuing at the time of such replacement, (C) prior to
any such replacement, such Lender shall
<PAGE>
have taken no action under subsection 2.12(f) so as to eliminate the
continued need for payment of amounts owing pursuant to subsection 2.12
(a)or 2.14, (D) the replacement financial institution shall purchase, at
par, all Loans and other amounts owing to such replaced Lender on or
prior to the date of replacement, (E) the Company shall be liable to
such replaced Lender under subsection 2.15 if any Eurodollar Loan owing
to such replaced Lender shall be purchased other than on the last day of
the Interest Period relating thereto, (F) the replacement financial
institution, if not already a Lender, shall be reasonably satisfactory
to the Administrative Agent, (G) the replaced Lender shall be obligated
to make such replacement in accordance with the provisions of subsection
9.6 (provided that the Company shall be obligated to pay the registration
and processing fee referred to therein), (H) until such time as such
replacement shall be consummated, the Company shall pay all additional
amounts (if any) required pursuant to subsection 2.12(a) or 2.14, as the
case may be, and (I) any such replacement shall not be deemed to be a
waiver of any rights that the Company, the Administrative Agent or any
other Lender shall have against the replaced Lender.
(i) The agreements in this subsection shall survive
the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.13 Illegality. Notwithstanding any other provisions
herein, if any Requirement of Law or any change therein or in the
interpretation or application thereof shall make it unlawful for any
Lender to make or maintain Eurodollar Loans as contemplated by this
Agreement, (a) the commitment of such Lender hereunder to make
Eurodollar Loans shall forthwith be cancelled and (b) such Lender's
Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to Alternate Base Rate Loans on the respective next
succeeding Interest Payment Date(s) for such Loans or within such earlier
period as required by law. The Company hereby agrees promptly to pay
any Lender, upon its demand, any additional amounts necessary to
compensate such Lender for any costs incurred by such Lender in making
any conversion in accordance with this subsection 2.13 including,
but not limited to, any interest or fees payable by such Lender to
lenders of funds obtained by it in order to make or maintain its
Eurodollar Loans hereunder (such Lender's notice of such costs, as
certified to the Company through the Administrative Agent, to be
conclusive absent manifest error).
2.14 Requirements of Law. Subject to subsection 2.12:
(a) In the event that any Requirement of Law or any
change therein or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not
having the force of law) from any central bank or other Governmental
Authority:
(i) does or shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Loans made
by it, or change the basis of taxation of payments to such Lender of
principal, fees, interest or any other amount payable hereunder (except
for changes in the rate of tax on the overall net income of such Lender);
<PAGE>
(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement against
assets held by, or deposits or other liabilities in or for the account of,
advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Lender which are not therwise
included in the determination of the Eurodollar Rate hereunder; or
(iii) does or shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such
Lender of making, renewing or maintaining advances or extensions of credit
or to reduce any amount receivable hereunder, in each case, in respect of
its Eurodollar Loans, then, in any such case, the Company shall promptly
pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such additional cost or reduced amount
receivable which such Lender deems to be material as determined by such
Lender with respect to such Eurodollar Loans. If a Lender becomes
entitled to claim any additional amounts pursuant to this subsection,
it shall promptly notify the Company, through the Administrative Agent,
of the event by reason of which it has become so entitled.
(b) In the event that any Lender shall have determined
that the adoption of any law, rule or regulation regarding capital
adequacy, or any change therein or in the interpretation or application
thereof or compliance by such Lender or any corporation controlling such
Lender with any request or directive regarding capital adequacy (whether
or not having the force of law) from any central bank or Governmental
Authority, does or shall have the effect of reducing the rate of return
on such Lender's or such corporation's capital as a consequence of its
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such
Lender to be material, then from time to time, within 15 days after demand
by such Lender, the Company shall pay to such Lender such additional
amount as shall be requested by such Lender as being required to compensate
it for such reduction.
(c) A certificate as to any additional amounts payable
pursuant to this subsection submitted by such Lender (with a copy to the
Administrative Agent) to the Company shall be conclusive in the absence
of manifest error. This subsection 2.14 shall survive the termination of
this Agreement and payment of the Loans and all other amounts
payable hereunder.
2.15 Indemnity. The Company agrees to indemnify each
Lender and to hold such Lender harmless from any loss or expense which
such Lender may sustain or incur as a consequence of (a) default by the
Company in payment of the principal amount of or interest on any
Eurodollar Loans of such Lender, including, but not limited to, any
such loss or expense arising from interest or fees payable by such Lender
to lenders of funds obtained by it in order to make or maintain its
Eurodollar Loans hereunder, (b) default by the Company in making a
borrowing after the Company has given a notice in accordance with
subsection 2.1(d) or 2.2(b)(iv)(B), including, but not limited to,
any such loss or expense arising from interest or fees payable by such
Lender to lenders of funds obtained by it to make or maintain its
<PAGE>
Eurodollar Loans hereunder and (c) default by the Company in making any
prepayment after the Company has given a notice in accordance with
subsection 2.7 or (d) a prepayment, voluntary or involuntary, of a
Eurodollar Loan on a day which is not the last day of an Interest
Period with respect thereto, including, but not limited to, any such loss
or expense arising from interest or fees payable by such Lender to
lenders of funds obtained by it in order to maintain its Eurodollar
Loans hereunder. This subsection 2.15 shall survive termination of
this Agreement and payment of the Loans and all other amounts payable
hereunder.
2.16 Extension of Termination Date. (a) On or before
the date which is 45 days (but no more than 60 days) prior to the
then-existing Termination Date, the Company may make a request to the
Administrative Agent (which shall promptly notify each Lender
of its receipt of such request) on behalf of the Lenders for an extension
of the then-existing Termination Date to the date 364 days after the
then-existing Termination Date.
(b) In the case of each requested extension, each
Lender shall promptly (and in no case later than the date (the
"Decision Date") 30 days prior to the then-existing Termination Date)
notify the Administrative Agent as to whether or not in such Lender's
sole discretion such Lender consents to such extension. The
Administrative Agent shall notify the Borrower on the Business Day
immediately following such Decision Date as to which Lenders shall have
consented to such request and which Lenders shall not have consented to
such request (any Lender not providing any notice to the Administrative
Agent by the Decision Date being deemed not to have consented to such
request). The then-existing Termination Date shall be extended only if
(i) Lenders having Loan Commitments aggregating at least 75% of the total
Loan Commitments consent and (ii) either (A) all non-consenting Lenders
have been replaced by replacement banks or other financial institutions
in accordance with the provisions of subsection 9.6 hereof such that the
aggregate amount of Loan Commitments is not reduced or (B) in the event
that not all non-consenting Lenders have been replaced, the Company
notifies the Administrative Agent that it wishes to extend the
then-existing Termination Date notwithstanding the reduced amount of
aggregate Loan Commitments and each consenting Lender and each replacement
bank or other financial institution in its sole discretion consents to
such extension after receiving notice of such reduced amount of aggregate
Loan Commitments; provided, that the Termination Date shall be extended
pursuant to this subsection 2.16 no more than twice. In the event that
the then-existing Termination Date is extended pursuant to clause (ii)
(B) of the preceding sentence, on the then-existing Termination Date the
Company shall pay to the Administrative Agent, for the benefit of each
non-consenting Lender that is not replaced with a replacement bank or
other financial institution, all amounts due with respect to such
non-consenting Lender.
SECTION 3. REPRESENTATIONS AND WARRANTIES
induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans herein provided for, the Company hereby
represents and warrants to the Administrative Agent and to each Lender
that:
<PAGE>
3.1 Financial Condition. The consolidated balance sheets
of the Company and its consolidated Subsidiaries as at December 31, 1997
and December 31, 1998 and the related consolidated statements of income
and stockholders' equity and cash flow for the fiscal years ended on such
dates, reported on by PricewaterhouseCoopers LLP, copies of which have
heretofore been furnished to each Lender, are complete and correct in all
material respects and present fairly the consolidated financial condition
of the Company and its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and changes in financial position
for the fiscal years then ended. The unaudited consolidated balance sheet
of the Company and its consolidated Subsidiaries as at March 31, 1999 and
the related unaudited consolidated statements of income and cash flow for
the three-month period ended on such date, copies of which have heretofore
been furnished to each Lender, are complete and correct in all material
respects and present fairly the consolidated financial condition of the
Company and its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and cash flow for the three-month
period then ended (subject to normal year-end audit adjustments). All such
financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently throughout
the periods involved. Neither the Company nor any of its consolidated
Subsidiaries had on March 31, 1999 any material Guarantee Obligation,
contingent liabilities or liability for taxes, long-term lease or unusual
forward or long-term commitment, which is not reflected in the unaudited
consolidated balance sheet as at March 31, 1999 or in the notes thereto.
3.2 No Change. Since December 31, 1998 there has been
no material adverse change in the business, operations, property or
financial or other condition of the Company and its Subsidiaries taken
as a whole.
3.3 Corporate Existence; Compliance with Law. Each of
the Company and its Subsidiaries (a) is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation, (b) has the corporate power and authority and the legal
right to own and operate its property, to lease the property it operates
as lessee and to conduct the business in which it is currently engaged,
(c) is duly qualified as a foreign corporation and in good standing under
the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification and
where the failure to be so qualified would have a material adverse effect
upon the business operations, property or financial or other condition of
the Company and its Subsidiaries taken as a whole and (d) is in compliance
with all Requirements of Law except to the extent that the failure to
comply therewith could not, in the aggregate, reasonably be expected to
have a material adverse effect on the business, operations, property or
financial or other condition of the Company and its Subsidiaries taken as
a whole and could not materially adversely affect the ability of the
Company to perform its obligations under this Agreement.
3.4 Corporate Power; Authorization; Enforceable
Obligations. The Company has the corporate power and authority and the
legal right to make, deliver and perform this Agreement and any Note and
to borrow hereunder and has taken all necessary corporate action to
<PAGE>
authorize the borrowings on the terms and conditions of this Agreement
and to authorize the execution, delivery and performance of this Agreement
and any Note. No consent or authorization of, filing with or other act by
or in respect of any Governmental Authority is required in connection with
the borrowings hereunder or with the execution, delivery, performance,
validity or enforceability of this Agreement or any Note. This Agreement
has been, and any Note will be, duly executed and delivered on behalf of
the Company. This Agreement constitutes, and any Note when executed and
delivered will constitute, a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or
at law).
3.5 No Legal Bar. The execution, delivery and
performance of this Agreement and any Note, the borrowings hereunder and
the use of the proceeds thereof, will not violate any Requirement of Law
or any Contractual Obligation of the Company or of any of its
Subsidiaries, and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or
revenues pursuant to any Requirement of Law or Contractual Obligation.
3.6 No Material Litigation. No litigation, investigation
or proceeding of or before any arbitrator or Governmental Authority is
pending or, to the knowledge of the Company, threatened by or against the
Company or any of its Subsidiaries or against any of its or their
respective properties or revenues (a) with respect to this Agreement or
any Note or any of the transactions contemplated hereby, or (b) which
could reasonably be expected to have a material adverse effect on the
business, operations, property or financial or other condition of the
Company and its Subsidiaries taken as a whole.
3.7 No Default. Neither the Company nor any of its
Subsidiaries is in default in any material respect under or with respect
to any Contractual Obligation which could reasonably be expected to be
materially adverse to the business, operations, property or financial or
other condition of the Company and its Subsidiaries taken as a whole or
which could materially adversely affect the ability of the Company or
any Subsidiary to perform its obligations under this Agreement and any
Note. No Default or Event of Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each of the Company
and its Subsidiaries has good record and marketable title in fee simple
to or valid leasehold interests in all its real property which is material
to the Company and its Subsidiaries, and good title to all its other
property which is material to the Company and its Subsidiaries and none
of such property is subject to any Lien of any nature whatsoever which
is prohibited by subsection 6.1 hereof.
3.9 No Burdensome Restrictions. No Contractual
Obligation of the Company or any of its Subsidiaries and no Requirement
of Law materially adversely affects, or insofar as the Company may
reasonably
<PAGE>
foresee may so affect, the business, operations, property or financial
or other condition of the Company and its Subsidiaries taken as a whole.
3.10 Taxes. Each of the Company and its Subsidiaries
has filed or caused to be filed all material tax returns which to the
reasonable knowledge of the Company are required to be filed and has
paid all taxes shown to be due and payable on said returns or on any
assessment made against it or any of its property and all other taxes,
fees or other charges imposed on it or any of its property by any
Governmental Authority (other than those the amount or validity of which
is currently being contested in good faith by appropriate proceedings
and with respect to which reserves in conformity with GAAP have been
provided on the books of the Company or its Subsidiaries, as the case
may be, or which are otherwise individually or in the aggregate not
material); and no tax liens have been filed and, to the reasonable
knowledge of the Company, no claims are being asserted with respect to
any such taxes, fees or other charges.
3.11 Federal Regulations. No part of the proceeds of any
Loans hereunder will be used for the purpose, whether immediate,
incidental, or ultimate, of purchasing any Margin Stock of any corporation
or carrying any Margin Stock of any corporation, or for any purpose which
violates Regulation U of the Board of Governors of the Federal Reserve
System, or which would be inconsistent with or violate, the provisions of
any of the Regulations of such Board of Governors. If requested by any
Lender or the Administrative Agent, the Company will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of FR Form U-1 referred to in said
Regulation U.
3.12 ERISA. None of the Company, any of its Subsidiaries
or any commonly controlled entity has incurred any material liability
related to the withdrawal from any Multiemployer Plan or the termination
of any Single Employer Plan. The withdrawal by the Company or any of its
Subsidiaries or any Commonly Controlled Entity from all Multiemployer
Plans in which they participate would not have a material adverse effect
on the business, operations, property or financial or other condition of
the Company and its Subsidiaries taken as a whole. The Company has not
been notified that any Multiemployer Plan to which the Company, any of its
Subsidiaries or any Commonly Controlled Entity contributes is either in
Reorganization or Insolvent. All Single Employer Plans maintained by the
Company, any of its Subsidiaries or any Commonly Controlled Entity are in
material compliance with all applicable requirements of law. The sum of
the present value of all accrued benefits vested under all Single Employer
Plans maintained by the Company or any of its Subsidiaries or any Commonly
Controlled Entity (based on assumptions used to fund such Plans) did not,
as of December 31, 1998, exceed the value of the assets of such Plans
allocable to such vested benefits.
3.13 Investment Company Act. The Company is not an
"investment company," or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as amended.
<PAGE>
3.14 Subsidiaries. All of the Subsidiaries of the Company
at the date hereof are set forth on Schedule 3.14.
3.15 Purpose of Loans. The proceeds of the Loans shall be
used by the Company for general corporate purposes.
3.16 Year 2000 Matters. Any reprogramming required to
permit the proper functioning (but only to the extent that such proper
functioning would otherwise be impaired by the occurrence of the year 2000)
in and following the year 2000 of computer systems and other equipment
containing embedded microchips, in either case owned or operated by the
Company or any of its Subsidiaries or used or relied upon in the conduct
of their business (including any such systems and other equipment supplied
by others or with which the computer systems of the Company or any of its
Subsidiaries interface), and the testing of all such systems and other
equipment as so reprogrammed, will be completed by September 30, 1999.
The costs to the Company and its Subsidiaries that have not been incurred
as of the date hereof for such reprogramming and testing and for the other
reasonably foreseeable consequences to them of any improper functioning
of other computer systems and equipment containing embedded microchips due
to the occurrence of the year 2000 could not reasonably be expected to
result in a Default or Event of Default or to have a material adverse
effect on the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole. Except
for any reprogramming referred to above, the computer systems of the
Company and its Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue for the term of this Agreement to be,
sufficient for the conduct of their business as currently conducted.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness. The obligation of each
Lender to make an initial Loan hereunder is subject to the satisfaction of
the following conditions precedent:
(a) Legal Opinion. The Administrative Agent shall have
received, with a counterpart for each Lender, an opinion of Peter G.
Skinner, Esq., Executive Vice President and General Counsel of the Company,
dated the Closing Date and addressed to the Administrative Agent and the
Lenders, substantially in the form of Exhibit F. Such opinion shall also
cover such other matters incident to the transactions contemplated by this
Agreement as the Administrative Agent or any Lender shall reasonably
require.
b) Officer's Certificate. The Administrative Agent shall
have received, with a counterpart for each Lender, an Officer's
Certificate of the Company dated the Closing Date, substantially in the
form of Exhibit G, with appropriate insertions and attachments,
satisfactory in form and substance to the Administrative Agent and its
counsel, executed by the President or Vice President and the Secretary or
Assistant Secretary of the Company.
<PAGE>
(c) Secretary's Certificate. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate
of the Secretary of the Company dated the Closing Date, substantially in
the form of Exhibit H, with appropriate insertions and attachments,
satisfactory in form and substance to the Administrative Agent and its
counsel.
(d) Compliance. Each of the Lenders shall have determined
that the making of such Loan and the use of the proceeds thereof will not
violate any Regulation of the Board of Governors of the Federal Reserve
System, and each Lender shall have received such documents and information
(including without limitation, a duly completed and signed Form U-1) as
such Lenders shall require to make such determination.
(e) Existing Credit Agreement. All interest and fees
under the Existing Credit Agreement through the Closing Date shall have
been paid.
(f) Fees. All fees payable to the Administrative Agent
or any Lender on the Closing Date shall have been paid.
(g) Additional Matters. All other documents and legal
matters in connection with the transactions contemplated by this
Agreement shall be satisfactory in form and substance to the
Administrative Agent and the Lenders and their counsel.
4.2 Conditions to All Loans. The obligation of each
Lender to make any Loan (including the initial Loan to be made by it
hereunder) to be made by it hereunder is subject to the satisfaction of
the following conditions precedent on the relevant Borrowing Date:
(a) Representations and Warranties. The representations
and warranties made by the Company herein or which are contained in any
certificate, document or financial or other statement furnished at any
time under or in connection herewith (except the representation and
warranty set forth in subsection 3.2 and except, in the case of a Refunding
Borrowing, the representations and warranties set forth in subsections 3.2,
3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.12 and 3.14) shall be correct on and as of
the Borrowing Date as if made on and as of such date.
(b) No Default or Event of Default. In the case of a
Refunding Borrowing,no Event of Default shall have occurred and be
continuing on the date of such Loan after giving effect to the Loans to be
made on such date and in the case of any other Loan no Default or Event of
Default shall have occurred and be continuing on such date or after giving
effect to the Loan to be made on such Borrowing Date.
<PAGE>
(c ) Additional Conditions to Competitive Loans. If such
Loan is made pursuant to subsection 2.2, all conditions set forth in such
subsection shall have been satisfied.
Each borrowing by the Company hereunder shall constitute
a representation and warranty by the Company as of the date of such
borrowing that the conditions in clauses (a), (b) and (c) of this
subsection have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Loan
Commitments remain in effect, any Loan remains outstanding and unpaid or
any other amount is owing to any Lender or the Administrative Agent
hereunder, the Company shall and in the case of the agreements set forth
in subsections 5.3, 5.4, 5.5 and 5.6 cause each of its Subsidiaries to:
5.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Company, a copy of the
consolidated balance sheet of the Company and its consolidated Subsidiaries
as at the end of such year and the related consolidated statements of
income and stockholders' equity and cash flow for such year, setting forth
in each case in comparative form the figures for the previous year,
reported on without a "going concern" or like qualification or exception,
or qualification arising out of the scope of the audit, by independent
certified public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than
60 days after the end of each of the first three quarterly periods of each
fiscal year of the Company, the unaudited consolidated balance sheet of
the Company and its consolidated Subsidiaries as at the end of each such
quarter and the related unaudited consolidated statements of income and
cash flow of the Company and its consolidated Subsidiaries for such
quarterly period setting forth in each case in comparative form the figures
for the comparable quarter of the previous year in the case of the
consolidated statements of income and the end of the immediately preceding
fiscal year in the case of the consolidated balance sheet, certified by
the chief financial officer of the Company (subject to normal year-end
audit adjustments);
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with
GAAP applied consistently throughout the periods reflected therein
(except as approved by such accountants or officer, as the case may be,
and disclosed therein).
5.2 Certificates; Other Information. Furnish to each
Lender:
<PAGE>
(a) concurrently with the delivery of the financial
statements referred to in subsection 5.1(a) above, a certificate of the
independent certified public accountants reporting on such financial
statements stating that in making the examination necessary therefor no
knowledge was obtained of any Default or Event of Default, except as
specified in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsections 5.1(a) and (b) above, a certificate
of a Responsible Officer (i) stating that, to the best of such officer's
knowledge, the Company during such period has observed or performed all
of its covenants and other agreements, and satisfied every condition,
contained in this Agreement and in any Note to be observed, performed or
satisfied by it, and that such officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate, and
(ii) showing in detail the calculations supporting such statement in
respect of subsections 6.3 and 6.4;
(c) within five days after the same are sent, copies of
all financial statements and reports which the Company sends to its
stockholders, and within five days after the same are filed, copies of
all financial statements and reports which the Company may make to,
or file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority; and
(d) promptly, such additional financial and other
information as any Lender may from time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the
case may be, all its obligations of whatever nature, except when the
amount or validity thereof is currently being contested in good faith
by appropriate proceedings and reserves in conformity with GAAP with
respect thereto have been provided on the books of the Company or its
Subsidiaries, as the case may be.
5.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as now conducted
by it and preserve, renew and keep in full force and effect its corporate
existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in
the normal conduct of its business except as otherwise permitted pursuant
to subsection 6.2; comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith
could not, in the aggregate, reasonably be expected to have a material
adverse effect on the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole.
5.5 Maintenance of Property; Insurance. Keep all
property useful and necessary in its business in good working order and
condition; maintain with financially sound and reputable insurance
companies insurance on all its property in at least such
<PAGE>
amounts and against at least such risks as are usually insured against in
the same general area by companies engaged in the same or a similar
business; and furnish to each Lender, upon written request, full
information as to the insurance carried.
5.6 Inspection of Property; Books and Records;
Discussions. Keep proper books of records and account in which full,
true and correct entries in conformity with GAAP and all Requirements of
Law shall be made of all dealings and transactions in relation to its
business and activities; and permit representatives of any Lender to visit
and inspect any of its properties and examine and make abstracts from any
of its books and records at any reasonable time and as often as may
reasonably be desired, and to discuss the business, operations, properties
and financial and other conditions of the Company and its Subsidiaries
with officers and employees of the Company and its Subsidiaries and with
its independent certified public accountants.
5.7 Notices. Promptly give notice to the Administrative
Agent and each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any default or event of default under any material
Contractual Obligation of the Company or any of its Subsidiaries;
(c )of any litigation, investigation or proceeding which
may exist at any time between the Company or any of its Subsidiaries and
any Governmental Authority, which in either case, if not cured or if
adversely determined, as the case may be, would have a material adverse
effect on the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole;
(d) of any litigation or proceeding affecting the Company
or any of its Subsidiaries in which (i) the amount involved is $50,000,000
or more and not covered by insurance or (ii) injunctive or similar relief
is sought which if adversely determined would have a material adverse
effect on the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole;
(e) of the following events, as soon as possible and in any
event within 30 days after the Company knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Plan, or (ii) the institution of proceedings or the taking
or expected taking of any other action by PBGC or the Company or any
Commonly Controlled Entity to terminate or withdraw or partially withdraw
from any Plan and, with respect to a Multiemployer Plan, the
Reorganization (as defined in Section 4241 of ERISA) or Insolvency (as
defined in Section 4245 of ERISA) of such Plan and in addition to such
notice, deliver to the Administrative Agent and each Lender whichever of
the following may be applicable: (A) a certificate of a Responsible
Officer setting forth details as to such Reportable
<PAGE>
Event and the action that the Company or Commonly Controlled Entity
proposes to take with respect thereto, together with a copy of any notice
of such Reportable Event that may be required to be filed with PBGC, or
(B) any notice delivered by PBGC evidencing its intent to institute such
proceedings or any notice to PBGC that such Plan is to be terminated, as
the case may be; and
(f) of a material adverse change in the business,
operations, property or financial or other condition of the Company and
its Subsidiaries taken as a whole.
Each notice pursuant to this subsection shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred
to therein and stating what action the Company proposes to take with
respect thereto. For all purposes of clause (e) of this subsection,
the Company shall be deemed to have all knowledge or knowledge of all facts
attributable to the administrator of such Plan.
SECTION 6. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Loan
Commitments remain in effect, any Loan remains outstanding and unpaid or
any other amount is owing to any Lender or the Administrative Agent
hereunder, the Company shall not, nor in the case of the agreements set
forth in subsections 6.1 or 6.2 shall it permit any of its Subsidiaries
to, directly or indirectly:
6.1 Limitation on Liens. Create, incur, assume or
suffer to exist any Lien upon any of its properties or assets, whether
now owned or hereafter acquired, except:
(a) Liens existing on the date hereof which are described
in Schedule 6.1 hereto;
(b) Liens created in favor of the Administrative Agent,
for the ratable benefit of the Lenders;
(c ) Liens for taxes or assessments either (i) not yet
delinquent or (ii) the validity of which is being contested in good faith
and as to which any reserves required by GAAP have been set aside;
(d) deposits or pledges to secure the payment of
workmen's compensation,unemployment insurance or other social security
benefits or obligations, or to secure the performance of bids, trade
contracts, leases, public or statutory obligations, surety or appeal bonds
or other obligations of a like nature incurred in the ordinary course of
business;
(e) materialmen's, mechanics', workmen's, repairmen's,
employees', or other like Liens either (i) arising in the ordinary course
of business and securing obligations not more than 90 days overdue or (ii)
being contested in good faith and as to which any
<PAGE>
reserves required by GAAP have been set aside or as to which adequate
bonds have been obtained;
(f) minor defects, easements, exceptions, reservations and
irregularities in the title to real property which do not, in the
aggregate, materially impair the use of such property for the purposes for
which it is or may reasonably be expected to be held;
(g) Liens on assets, each of which Liens (i) existed on such
assets before the time of their acquisition by the Company or such
Subsidiary, or (ii) existed on such assets of any Subsidiary before the
time it became a Subsidiary, or (iii) was created solely for the purpose
of securing, and was created substantially contemporaneously with the
incurring of, Indebtedness representing, or incurred to finance, the cost
of such assets; provided that, with respect to Liens referred to in
clause (iii), (A) such Liens shall at all times be confined to the assets
so acquired and improvements, alterations, replacements and modifications
thereto and (B) the principal amount of the Indebtedness secured by such
Liens shall in no case exceed 100% of the lesser of the cost or the fair
market value of the assets subject thereto at the time of acquisition
thereof, and provided, further that with respect to each Lien referred to
in this paragraph (g), any extension, renewal or replacement thereof shall
be permitted only to the extent that the principal amount of Indebtedness
secured thereby shall not exceed the principal amount of Indebtedness so
secured at the time of such extension, renewal or replacement; and
(h) Liens not otherwise permitted by this subsection 6.1
so long as neither (i) the aggregate outstanding principal amount of the
obligations secured thereby nor (ii) the aggregate fair market value
(determined as of the date such Lien is incurred) of the assets subject
thereto exceeds (as to the Company and all Subsidiaries) 10% of
Consolidated Net Worth at any time.
6.2 Limitation on Mergers and Sales of Assets. (a)
Consolidate or merge with or into, or sell, convey, transfer or lease in
a single transaction or in a series of related transactions any substantial
part of the assets of the Company and its consolidated Subsidiaries taken
as a whole to, any other Person, except (i) any such consolidation, merger,
sale, conveyance, transfer or lease when the only parties to such
transaction or series of transactions are one of its Subsidiaries and one
or more of its other Subsidiaries, (ii) any such sale, conveyance, transfer
or lease to the Company by one or more of its Subsidiaries and (iii) the
merger or consolidation of the Company with another corporation, provided
that the Company is the surviving corporation and that, after giving effect
to such consolidation or merger, no Default or Event of Default has
occurred and is continuing.
(b) Convey, transfer or lease, or sell and lease-back, any
significant fixed asset used or useable in its business or the shares of
the capital stock of any Subsidiary, except (i) to the Company by any of
its Subsidiaries or to any of the Company's Subsidiaries by one or more of
its other Subsidiaries, (ii) for a sale or conveyance of such a
<PAGE>
fixed asset in connection with the replacement thereof or in
the ordinary course of business or (iii) if such conveyance, transfer,
lease or sale is for fair value as determined by the Board of Directors or
any executive officer of the Company and not materially adverse to the
Lenders.
6.3 Maintenance of Ratio of Consolidated Total
Indebtedness to Consolidated Total Capitalization. Permit the ratio of
Consolidated Total Indebtedness to Consolidated Total Capitalization to
exceed 0.60 to 1 at any time.
6.4 Maintenance of Ratio of Annualized Consolidated Cash
Flow. Permit the ratio of (a) Annualized Consolidated Cash Flow as at the
end of any fiscal quarter of the Company to (b) Annualized Consolidated
Interest Expense as at the end of such fiscal quarter, to be less than
2.0 to 1.
SECTION 7. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) The Company shall fail to pay (i) any principal of any
Loan when due in accordance with the terms thereof or (ii) any interest
on any Loan, or any other amount payable hereunder, within five days after
any such interest or other amount becomes due in accordance with the terms
thereof or hereof; or
(b) Any representation or warranty made or deemed made
by the Company herein or which is contained in any certificate, document
or financial or other statement furnished at any time under or in
connection with this Agreement shall prove to have been incorrect in any
material respect on or as of the date made or deemed made; or
(c ) The Company shall default in the observance or
performance of any agreement contained in Section 6; or
(d) The Company shall default in any material respect
in the observance or performance of any other agreement contained in
this Agreement, and such default shall continue unremedied for a period
of 30 days; or
(e) The Company or any of its Subsidiaries shall (i)
default in any payment of principal of or interest on any Indebtedness
for more than $2,000,000 (other than the Loans) or in the payment of
any Guarantee Obligation in excess of $2,000,000 beyond the period of
grace (not to exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee Obligation was
created; or (ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or Guarantee
Obligation or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition
exist, if such default or other event or condition causes, or permits the
holder or holders of such Indebtedness or beneficiary or beneficiaries of
such
<PAGE>
Guarantee Obligation (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause, with the giving of
notice if required, such Indebtedness to become due prior to its stated
maturity or such Guarantee Obligation to become payable; or
(f)(i) The Company or any of its Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or the
Company or any of its Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the
Company or any of its Subsidiaries any case, proceeding or other action of
a nature referred to in clause (i)above which (A) results in the entry of
an order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Company or any of its Subsidiaries
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed
or bonded pending appeal within 60 days from the entry thereof; or (iv)
the Company or any of its Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v)
the Company or any of its Subsidiaries shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(g)(i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency"
(as defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed,
or a trustee shall be appointed, to administer or to terminate, any Single
Employer Plan, which Reportable Event or institution of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, and, in the case of a Reportable Event, the
continuance of such Reportable Event unremedied for ten days after notice
of such Reportable Event pursuant to Section 4043(a), (c) or (d) of ERISA
is given and, in the case of the institution of proceedings, the
continuance of such proceedings for ten days after commencement thereof,
(iv) any Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) any of the Company, any of its Subsidiaries or any commonly
controlled entity shall incur material liability relating to the withdrawal
from any Multiemployer Plan or the termination of any Single Employer Plan
or (vi) any other event or condition shall occur or exist, with respect to
a Single Employer Plan;
<PAGE>
provided, that in the case of each of clauses (i) through (vi) above, such
event or condition, together with all other such events or conditions, if
any, could subject the Company or any of its Subsidiaries to any tax,
penalty or other liabilities that in the aggregate would be material in
relation to the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole; or
(h) One or more judgments or decrees shall be entered
against the Company or any of its Subsidiaries involving in the aggregate
a liability (to the extent not paid or covered by insurance) of
$50,000,000 or more and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 90 days from
the entry thereof; or
(i )(i) any "person" or "group" (as such terms are used
in Sections 13(d)and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), other than members of the Bancroft family
or any trusts for their benefit, shall become, or obtain rights (whether
by means or warrants, options or otherwise) to become, the "beneficial
owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act),
directly or indirectly, of shares of Capital Stock representing more than
35% of the total voting power of the Company, or (ii) the board of
directors of the Company shall cease to consist of a majority of
Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above, automatically
the Loan Commitments shall immediately terminate and the Loans hereunder
(with accrued interest thereon) and all other amounts owing under this
Agreement and any Note shall immediately become due and payable, and
(B) if such event is any other Event of Default, either or both of the
following actions may be taken: (i) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the
Company declare the Loan Commitments to be terminated forthwith,
whereupon the Loan Commitments shall immediately terminate; and (ii)
with the consent of the Required Lenders, the Administrative Agent may,
or upon the request of the Required Lenders, the Administrative Agent
shall, by notice of default to the Company, declare the Loans hereunder
(with accrued interest thereon) and all other amounts owing under this
Agreement and any Note to be due and payable forthwith, whereupon the
same shall immediately become due and payable. Except as expressly
provided above in this Section, presentment, demand, protest and all
other notices of any kind are hereby expressly waived.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. The Lenders from time to time party to
this Credit Agreement, whether as original signatories or as Purchasing
Lenders pursuant to subsection 9.6, hereby irrevocably designate and
appoint The Chase Manhattan Bank as the Administrative Agent of such
Lender under this Agreement, and each such Lender irrevocably authorizes
<PAGE>
The Chase Manhattan Bank, as the Administrative Agent for such Lender, to
take such action on its behalf under the provisions of this Agreement and
to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement, together with
such other powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with
any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or
otherwise exist against the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning
all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-
in-fact or Affiliates shall be (i) liable for any action lawfully taken
or omitted to be taken by it or such Person under or in connection
with this Agreement (except for its or such Person's own gross negligence
or willful misconduct), or (ii) responsible in any manner to any of the
Lenders for any recitals, statements, representations or warranties made
by the Company or any officer thereof contained in this Agreement or in
any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any Note
or for any failure of the Company to perform its obligations hereunder.
The Administrative Agent shall not be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement, or to
inspect the properties, books or records of the Company.
8.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying,
upon any Note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Company), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified
in failing or refusing to take any action under this Agreement unless it
shall first receive such advice or concurrence of the Required Lenders as
it deems appropriate or it shall first be indemnified to its satisfaction
by the Lenders against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action.
The Administrative Agent shall in all cases be fully protected in acting,
or in refraining from
<PAGE>
acting, under this Agreement and any Note in accordance with a request of
the Required Lenders, or all the Lenders where unanimity is required
pursuant to subsection 9.1, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and
all future holders of the Loans.
8.5 Notice of Default. The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of any Default
or Event of Default hereunder unless the Administrative Agent has received
notice from a Lender or the Company referring to this Agreement,
describing such Default or Event of Default and stating that such notice
is a "notice of default." In the event that the administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof
to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders, or all the Lenders where unanimity is
required pursuant to subsection 9.1; provided that unless and until the
Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event
of Default as it shall deem advisable in the best interests of the Lenders.
8.6 Non-Reliance on Administrative Agent, Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates has made any representations or warranties to it and that
no act by the Administrative Agent hereinafter taken, including any review
of the affairs of the Company, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender.
Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and credit
worthiness of the Company and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and
other condition and creditworthiness of the Company. Except for notices,
reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
financial and other condition or creditworthiness of the Company which may
come into the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
8.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed
by the Company and without limiting the obligation of the Company to
do so), ratably according to the respective amounts of
<PAGE>
their original Loan Commitments, from and against any and all liabilities,
obligations, losses, damages, penalties, actions,judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including without limitation at any time following the payment of the
Loans) be imposed on, incurred by or asserted against the Administrative
Agent in any way relating to or arising out of this Agreement, or any
documents contemplated by or referred to herein or the transactions
contemplated hereby or any action taken or omitted by the Administrative
Agent under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the Administrative Agent's
gross negligence or willful misconduct. The agreements in this subsection
shall survive the payment of the Loans and all other amounts payable
hereunder.
8.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Company as
though the Administrative Agent were not the Administrative Agent
hereunder. With respect to its Loans made or renewed by it and any Note
issued to it, the Administrative Agent shall have the same rights and
powers under this Agreement as any Lender and may exercise the same as
though it were not the Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual
capacity.
8.9 Successor Administrative Agent. The Administrative
Agent may resign as Administrative Agent upon 10 days' notice to the
Lenders. If the Administrative Agent shall resign as Administrative
Agent under this Agreement, then the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders which successor
agent shall be approved by the Company, whereupon such successor agent
shall succeed to the rights, powers and duties of the Administrative
Agent, and the term "Administrative Agent" shall mean such successor
agent effective upon its appointment, and the former Administrative
Agent's rights, powers and duties as Administrative Agent shall be
terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or
any holders of the Loans. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this
subsection 8.9 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement.
8.10 Documentation Agent and Syndication Agent. Neither
the Documentation Agent nor the Syndication Agent shall have any duties
or responsibilities hereunder in its capacity as such.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. With the written consent of
the Required Lenders, the Administrative Agent and the Company may, from
time to time, enter into written amendments, supplements or modifications
hereto for the purpose of adding any provisions to this Agreement or any
Note or changing in any manner the rights of the
<PAGE>
Lenders or of the Company hereunder or thereunder or waiving, on such
terms and conditions as the Administrative Agent may specify in such
instrument, any of the requirements of this Agreement or any Note or any
Default or Event of Default and its consequences; provided, however, that
(i) such amendments, supplements or modifications may only be made
pursuant to this subsection 9.1 and (ii) no such waiver and no such
amendment, supplement or modification shall (a) extend the maturity of
any Loan (except in connection with an extension of the Termination Date
in accordance with subsection 2.16), or reduce the rate or extend the
time of payment of interest thereon, or reduce any fee payable to the
Lenders hereunder, or reduce the principal amount of any Loan, or
increase the amount or extend the expiration date of any Lender's Loan
Commitment or amend, modify or waive any provision of this subsection or
reduce the percentage specified in the definition of Required Lenders, or
consent to the assignment or transfer by the Company of any of its rights
and obligations under this Agreement, in each case without the written
consent of each Lender affected thereby, (b) amend, modify or waive any
provision of Section 8 without the written consent of the then
Administrative Agent or (c) amend subsection 2.16 without the written
consent of all the Lenders. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and
shall be binding upon the Company, the Lenders, the Administrative Agent
and all future holders of the Loans. In the case of any waiver, the
Company, the Lenders and the Administrative Agent shall be restored to
their former position and rights hereunder and under any Notes, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other
default or Event of Default, or impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in writing,
including by telecopy, and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when delivered by hand,
or when deposited in the mail, postage prepaid, or, in the case of
telecopy notice, when received, addressed as follows in the case of the
Company and the Administrative Agent, and as set forth in Schedule 9.2
in the case of the other parties hereto, or to such other address as may
be hereafter notified by the respective parties hereto and any future
holders of the Loans:
The Company: Dow Jones & Company, Inc.
200 Liberty Street
New York, New York 10281
Attention: Treasurer
Telecopy: 609-520-5180
The Administrative Agent: The Chase Manhattan Bank
Agent Bank Services Group
1 Chase Manhattan Plaza
New York, New York 10081
Attention: Donna Montgomery
Telecopy: 212-552-5700
<PAGE>
with copy to: The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Attention: Bruce Langenkamp
Telecopy: 212-270-1204
provided that any notice, request or demand to or upon the Administrative
Agent or the Lenders pursuant to subsections 2.1(d), 2.2, 2.5 and 2.7
shall not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Administrative
Agent or any Lender, any right, remedy, power or privilege hereunder,
shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement and
the making of the Loans hereunder.
9.5 Payment of Expenses and Taxes. The Company agrees
(a) to pay or reimburse the Administrative Agent for all its reasonable
out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement
or modification to, this Agreement and any Notes and any other
documents prepared in connection herewith, and the consummation of the
transactions contemplated hereby and thereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent, (b) to pay or reimburse each Lender and the
Administrative Agent for all their costs and expenses incurred in
connection with the enforcement or preservation of any rights under
this Agreement, any Notes and any such other documents, including, without
limitation, reasonable fees and disbursements of counsel to the
Administrative Agent and to the several Lenders, (c) to pay, indemnify,
and hold each Lender and the Administrative Agent harmless from, any and
all recording and filing fees and any and all liabilities with respect
to, or resulting from any delay in paying, stamp, excise and other similar
taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation of any of
the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, any Notes and any such other documents, and (d) to pay,
indemnify, and hold each Lender and the Administrative Agent and their
respective officers, directors, employees, affiliates, agents and
controlling persons (each, an "Indemnitee") harmless from and against
any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever arising out of the execution, delivery, enforcement,
performance and administration of this Agreement, or the use by the
Company of the
<PAGE>
proceeds of the Loans (including, without limitation, any such use that
would result in a violation of Regulation U or X of the Board of Governors
of the Federal Reserve System) (all the foregoing in this clause (d),
collectively, the "Indemnified Liabilities"), provided, that the Company
shall have no obligation hereunder to any Indemnitee with respect to
Indemnified Liabilities to the extent such Indemnified Liabilities are
found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnitee. The agreements in this subsection 9.5
shall survive repayment of the Loans and all other amounts payable
hereunder.
9.6 Successors and Assigns; Participations; Purchasing
Lenders. (a) This Agreement shall be binding upon and inure to the
benefit of the Company, the Lenders, the Administrative Agent, all future
holders of the Loans, and their respective successors and assigns, except
that the Company may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of
each Lender.
(b) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants")
participating interests in any Loan owing to such Lender, any Loan
Commitment of such Lender or any other interest of such Lender hereunder
or under any Note. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations under
this Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan
for all purposes under this Agreement and any Note and the Company and
the Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under
this Agreement and any Note. In no event shall any Participant under any
such participation 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 Company therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of, or interest
on, the Loans or any fees payable hereunder, or postpone the date of the
final maturity of the Loans, in each case to the extent subject to such
participation. The Company agrees that if amounts outstanding under this
Agreement and the Loans are due or unpaid, or shall have been declared or
shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same
extent as if the amount of its participating interest were owing directly
to it as a Lender under this Agreement, provided that, in purchasing such
participating interest, such Participant shall be deemed to have agreed
to share with the Lenders the proceeds thereof as provided in subsection
9.7(a) as fully as if it were a Lender hereunder. The Company also agrees
that each Participant shall be entitled to the benefits of subsections
2.12, 2.13, 2.14, 2.15 and 9.5 with respect to its participation in the
Loan Commitments and the Loans outstanding from time to time; provided,
that no Participant shall be entitled to receive any greater amount
pursuant to such subsections than the transferor Lender would have been
entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such
transfer occurred.
<PAGE>
(c ) Any Lender may, in accordance with applicable law,
at any time assign to one or more banks or other entities ("Competitive
Loan Assignees") any Competitive Loan owing to such Lender and any Note
held by such Lender evidencing such Competitive Loan, pursuant to a
Competitive Loan Assignment executed by the assignor Lender and the
Competitive Loan Assignee. Upon such execution, from and after the date
of such Competitive Loan Assignment, the Competitive Loan Assignee shall,
to the extent of the assignment provided for in such Competitive Loan
Assignment, be deemed to have the same rights and benefits of payment and
enforcement with respect to such Competitive Loan and any such Note and
the same rights of setoff and obligation to share pursuant to subsection
9.7 as it would have had if it were a Lender hereunder; provided, that
unless such Competitive Loan Assignment shall otherwise specify and a
copy of such Competitive Loan Assignment shall have been delivered to the
Administrative Agent for its acceptance and recording in the Register in
accordance with subsection 9.6(f), the assignor thereunder shall act as
collection agent for the Competitive Loan Assignee thereunder, and the
Administrative Agent shall pay all amounts received from the Company which
are allocable to the assigned Competitive Loan and Note, if any, directly
to such assignor without any further liability to such Competitive Loan
Assignee. A Competitive Loan Assignee under a Competitive Loan Assignment
shall not, by virtue of such Competitive Loan Assignment, become a party
to this Agreement or have any rights to consent to or refrain from
consenting to any amendment, waiver or other modification of any provision
of this Agreement or any related document; provided, no Competitive Loan
Assignee shall be entitled to receive any greater amount than the Lender
would have been entitled to receive in respect of the amount of the
Competitive Loan Assignment by such Lender to such Competitive Loan
Assignee had no such assignment occurred; provided, further, that (x) the
assignor under such Competitive Loan Assignment and such Competitive Loan
Assignee may, in their discretion, agree between themselves upon the
manner in which such assignor will exercise its rights under this
Agreement and any related document, and (y) if a copy of such Competitive
Loan Assignment shall have been delivered to the Administrative Agent for
its acceptance and recording in the Register in accordance with subsection
9.6(f), neither the principal amount of, the interest rate on, nor the
maturity date of any Competitive Loan and Note, if any, assigned to the
Competitive Loan Assignee thereunder will be modified without the written
consent of such Competitive Loan Assignee. If a Competitive Loan Assignee
has caused a Competitive Loan Assignment to be recorded in the Register
in accordance with subsection 9.6(f), such Competitive Loan Assignee may
thereafter, in the ordinary course of its business and in accordance with
applicable law, assign such Competitive Loan and Note, if any, to any
Lender, to any affiliate or subsidiary of such Competitive Loan Assignee
or to any other financial institution that has total assets in excess of
$1,000,000,000 and that in the ordinary course of its business extends
credit of the same type as such Competitive Loan, and the foregoing
provisions of this paragraph (c) shall apply, mutatis mutandis, to any
such assignment by a Competitive Loan Assignee. Except in accordance
with the preceding sentence, Competitive Loans and any related Notes may
not be further assigned by a Competitive Loan Assignee, subject to any
legal or regulatory requirement that the Competitive Loan Assignee's
assets must remain under its control.
<PAGE>
(d) Any Lender may, in accordance with applicable law, at
any time and from time to time sell to any other Lender or any affiliate
thereof all or any part of such transferor Lender's rights and obligations
under this Agreement (other than its rights with respect to Competitive
Loans, assignment of which shall be governed by paragraph (c) above)
pursuant to an Assignment and Acceptance, executed by such purchasing
Lender and such transferor Lender and delivered to the Administrative
Agent for its acceptance and recording in the Register. In addition, with
the consent of the Company and the Administrative Agent (which in each case
shall not be unreasonably withheld), any Lender may, in accordance with
applicable law, at any time and from time to time sell to one or more
additional banks, financial institutions or other entities that are not
then Lenders or affiliates thereof (together with purchasing Lenders
pursuant to the preceding sentence (including, without limitation, any
affiliate through which Loans were not previously booked), each a
"Purchasing Lender"), all or any part of its rights and obligations under
this Agreement pursuant to an Assignment and Acceptance, executed by such
Purchasing Lender, such transferor Lender, the Company and the
Administrative Agent, and delivered to the Administrative Agent for its
acceptance and recording in the Register, provided that no such assignment
to a Purchasing Lender (other than any Lender or any affiliate of any
Lender) shall be in an aggregate principal amount of less than $5,000,000
(other than in the case of an assignment of all of a Lender's interests
under this Agreement), unless otherwise agreed by the Company and the
Administrative Agent. Upon such execution, delivery, acceptance and
recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Purchasing Lender thereunder shall be
a party hereto and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder with
a Loan Commitment as set forth therein, and (y) the transferor Lender
thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all of a transferor
Lender's rights and obligations under this Agreement, such transferor
Lender shall cease to be a party hereto). Notwithstanding any provision
of this subsection 9.6, the consent of the Company shall not be required
for any assignment that occurs when an Event of Default pursuant to
subsection 7(f) shall have occurred and be continuing with respect to
the Company. Such Assignment and Acceptance shall be deemed to amend
this Agreement to the extent, and only to the extent, necessary to
reflect the addition of such Purchasing Lender and the resulting
adjustment of Commitment Percentages arising from the purchase by such
Purchasing Lender of all or a portion of the rights and obligations of
such transferor Lender under this Agreement.
(e) The Administrative Agent shall, on behalf of the
Company, maintain at its address referred to in subsection 9.2 a copy of
each Competitive Loan Assignment and each Assignment and Acceptance
delivered to it and a register (the "Register") for the recordation of (i)
the names and addresses of the Lenders and the Loan Commitment of,
and principal amount and stated interest of the Loans owing to, each
Lender from time to time, and (ii) with respect to each Competitive Loan
Assignment delivered to the Administrative Agent, the name and address of
the Competitive Loan Assignee and the principal amount and stated interest
of each Competitive Loan owing to such Competitive Loan Assignee. The
entries in the Register shall be conclusive, in the absence of manifest
error, and the Company, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the
<PAGE>
Register as the owner of the Loan and any Notes evidencing the Loans
recorded therein for all purposes of this Agreement. Any assignment of
any Loan, whether or not evidenced by a Note, shall be effective only
upon appropriate entries with respect thereto being made in the Register
(and each Note shall expressly so provide). Any assignment or transfer
of all or part of a Loan evidenced by a Note shall be registered
on the Register only upon surrender for registration of assignment or
transfer of the Note evidencing such Loan, accompanied by a duly executed
Assignment and Acceptance, and thereupon one or more new Notes shall be
issued to the designated Assignee. The Register shall be available for
inspection by the Company or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(f) Upon its receipt of a Competitive Loan Assignment
executed by an assignor Lender and a Competitive Loan Assignee, together
with payment from the assignor or assignee Lender to the Administrative
Agent of a registration and processing fee of $2,000.00, the
Administrative Agent shall promptly accept such Competitive Loan
Assignment, record the information contained therein in the Register and
give notice of such acceptance and recordation to the assignor Lender, the
Competitive Loan Assignee and the Company. Upon its receipt of an
Assignment and Acceptance executed by a transferor Lender and a Purchasing
Lender (and, in the case of a Purchasing Lender that is not then a Lender
or an affiliate thereof, by the Company and the Administrative Agent)
together with payment from the assignor or assignee Lender to the
Administrative Agent of a registration and processing fee of $4,000.00,
the Administrative Agent shall promptly accept such Assignment and
Acceptance and promptly record the information contained therein and the
effective date determined pursuant thereto in the Register.
(g) The Company authorizes each Lender to disclose to
any Participant, Competitive Loan Assignee or Purchasing Lender (each,
a "Transferee") and any prospective Transferee any and all financial
information in such Lender's possession concerning the Company and its
affiliates which has been delivered to such Lender by or on behalf of the
Company pursuant to this Agreement or which has been delivered to such
Lender by or on behalf of the Company in connection with such Lender's
credit evaluation of the Company and its affiliates prior to becoming a
party to this Agreement.
(h) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection 9.6 concerning
assignments of Loans and Notes relate only to absolute assignments and
that such provisions do not prohibit assignments creating security
interests, including any pledge or assignment by a Lender of any Loan or
Note to any Federal Reserve Bank in accordance with applicable law.
(i) The Borrower, upon receipt of written notice from the
relevant Lender, agrees to issue Notes to any Lender requiring Notes to
facilitate transactions of the type described in paragraph (h) above.
<PAGE>
9.7 Adjustments; Set-off. (a) If any Lender or
Transferee (a "benefited Lender") shall at any time receive any payment
of all or part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in
clause (f) of Section 7, or otherwise) in a greater proportion than any
such payment to and collateral received by any other Lender, if any, in
respect of such other Lender's Loans, or interest thereon, such benefited
Lender shall purchase for cash from the other Lenders such portion of
each such other Lender's Loan, or shall provide such other Lenders with
the benefits of any such collateral, or the proceeds thereof, as shall
be necessary to cause such benefited Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefited Lender,
such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest. The
Company agrees that each Lender so purchasing a portion of another
Lender's Loan may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as
if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the
Lenders provided by law, each Lender shall have the right, without prior
notice to the Company, any such notice being expressly waived by the
Company to the extent permitted by applicable law, upon the occurrence
and continuance of an Event of Default to set-off and apply against any
indebtedness, whether matured or unmatured, of the Company to such Lender,
any amount owing from such Lender to the Company, at or at any time after
the happening of any of the above mentioned events, and the aforesaid
right of set-off may be exercised by such Lender against the Company or
against any trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or attachment
creditor of the Company, or against anyone else claiming through or
against the Company or such trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, receiver, or execution, judgment or
attachment creditor, notwithstanding the fact that such right of set-off
shall not have been exercised by such Lender prior to the making, filing
or issuance, or service upon such Lender of, or of notice of, any such
petition; assignment for the benefit of creditors; appointment or
application for the appointment of a receiver; or issuance of execution,
subpoena, order or warrant. Each Lender agrees promptly to notify the
Company and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to give such
notice shall not affect the validity of such set-off and application.
9.8 Counterparts. This Agreement may be executed by one
or more of the parties to this Agreement on any number of separate
counterparts, and all of said counterparts taken together shall be deemed
to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the
Company and the Administrative Agent.
9.9 Severability. Any provision of this Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
<PAGE>
hereof, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
9.10 Integration. This Agreement and any Notes represent
the agreement of the Company, the Administrative Agent and the Lenders
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or
any Lender relative to subject matter hereof not expressly set forth
or referred to herein or in any such Notes.
9.11 Governing Law. This Agreement and the rights and
obligations of the parties under this Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New
York.
9.12 Submission To Jurisdiction; Waivers. (A) The
Company hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive
general jurisdiction of the Courts of the State of New York, the courts
of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Company at its address set forth in subsection 9.2 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted by law or
shall limit the right to sue in any other jurisdiction.
(B) The Company and the Administrative Agent and each
Lender hereby irrevocably and unconditionally waive trial by jury in
any legal action or proceeding relating to this Agreement and for any
counterclaim therein.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
<PAGE>
DOW JONES & COMPANY, INC.
By:________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By:________________________
Name:
Title:
<PAGE>
WESTDEUTSCHE LANDESBANK GIROZENTRALE, New York Branch,as
Documentation Agent and as a Lender
By:________________________
Name:
Title:
By:________________________
Name:
Title:
<PAGE>
FLEET NATIONAL BANK,
as Syndication Agent and as a Lender
By:________________________
Name:
Title:
<PAGE>
BANCA COMMERCIALE ITALIANA
By:________________________
Name:
Title:
By:________________________
Name:
Title:
<PAGE>
BANCA DI ROMA
By:________________________
Name:
Title:
By:________________________
Name:
Title:
<PAGE>
BANCA NAZIONALE DEL LAVORO
By:________________________
Name:
Title:
<PAGE>
BANK OF HAWAII
By:________________________
Name:
Title:
<PAGE>
BANK OF NEW YORK
By:________________________
Name:
Title:
<PAGE>
DEUTSCHE BANK AG, New York Branch and/or Cayman Islands Branch
By:________________________
Name:
Title:
By:________________________
Name:
Title:
<PAGE>
HSBC BANK USA
By:________________________
Name:
Title:
<PAGE>
LLOYDS TSB BANK PLC
By:________________________
Name:
Title:
<PAGE>
THE NORTHERN TRUST COMPANY
By:________________________
Name:
Title:
<PAGE>
SANPAOLO IMI S.P.A.
By:________________________
Name:
Title:
By:________________________
Name:
Title:
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE 1.1 to
Amended and Restated Credit Agreement
Lender Loan Commitment
<S> <C>
The Chase Manhattan Bank $44,000,000
Westdeutsche Landesbank Girozentrale, $44,000,000
New York Branch
Fleet National Bank $44,000,000
The Northern Trust Company $28,500,000
Bank of Hawaii $28,500,000
Deutsche Bank AG, New York Branch
and/or Cayman Islands Branch $28,500,000
Banca Di Roma $28,500,000
SanPaolo IMI S.p.A. $28,500,000
HSBC Bank USA $28,500,000
Bank of New York $28,500,000
Banca Nazionale Del Lavoro S.p.A., $28,500,000
New York Branch
Banca Commerciale Italiana,
New York Branch $20,000,000
Lloyds TSB Bank plc $20,000,000
Total $400,000,000
</TABLE>
<PAGE>
SCHEDULE 3.14
SUBSIDIARIES OF THE COMPANY
Name of Subsidiary
Dow Jones AER Company, Inc.
Economic Research Company, Inc.
Dow Jones & Company (Australia) Pty. Limited
Dow Jones BD Services, Inc.
Dow Jones Broadcasting (Asia), Inc.
Dow Jones Broadcasting (Europe), Inc.
Dow Jones Broadcasting (USA), Inc.
Dow Jones Canada, Inc.
Dow Jones Consulting (Shanghai) Limited
Dow Jones Financial Publishing Corp.
Dow Jones Information Publishing, Inc.
Dow Jones Information Services International (HK) Ltd.
Dow Jones International GmbH
Dow Jones International Ltd.
Dow Jones International Marketing Services
Dow Jones (Japan) K.K.
Dow Jones Newsprint Company, Inc.
Dow Jones Printing Company (Asia), Inc.
Dow Jones Publishing Company (Asia), Inc. (90% owned)
Dow Jones Distribution Co. (Asia), Inc.
Dow Jones Publishing Company (Europe), Inc.
Dow Jones Real Estate Development Corp.
Dow Jones Southern Holding Company, Inc.
Dow Jones Ventures II, Inc.
Dow Jones Ventures III, Inc.
Dow Jones Virginia Company, Inc.
Federal Filings, Incorporated
IDD Enterprises, L.P.
National Delivery Service, Inc.
Ottaway Newspapers, Inc.
Essex County Newspapers, Inc.
News-Sun, Inc.
ONI Press, Inc.
Research and Marketing Solutions, Inc.
The Inquirer & Mirror, Inc.
Portuguese-American Publications, Inc.
Review Publishing Company Limited
The China Phone Book Co. Ltd
<PAGE>
SCHEDULE 6.1
EXISTING LIENS
None
<PAGE>
SCHEDULE 9.2 to
Amended and Restated Credit Agreement
Names and Addresses of Lenders
The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Attention: Bruce Langenkamp
Telecopy: 212-270-1204
Banca Commerciale Italiana,
New York Branch
One William Street
New York, NY 10004
Attention: Charlie Dougherty
Telecopy: 212-809-2124
Banca Di Roma
34 East 51st Street
New York, NY 10022
Attention: Steven Paley
Telecopy: 212-407-1778
Banca Nazionale Del Lavoro S.p.A.,
New York Branch
25 West 51st Street
New York, NY 10019
Attention: Giulio Giovine
Telecopy: 212-765-2978
Bank of Hawaii
130 Merchant Street, 20th Fl.
Honolulu, Hawaii 96813
Attention: James Polk
Telecopy: 808-537-8301
<PAGE>
Bank of New York
One Wall Street
New York, NY 10286
Attention: Brian Weddington
Telecopy: 212-635-8595
Deutsche Bank AG,
New York Branch and/or
Cayman Islands Branch
31 West 52nd Street
New York, New York 10019
Attention: Fritz Laird
Telecopy: 212-469-8212
Fleet National Bank
One Landmark Square, 12th Fl.
Stamford, CT 06904
Attention: Barbara Keegan
Telecopy: 203-358-6111
HSBC Bank USA
140 Broadway, 14th Fl.
New York, NY 10005-1196
Attention: Rochelle Forster
Telecopy: 212-658-5109
Lloyds TSB Bank plc
575 Fifth Avenue, 17th Floor
New York, NY 10017
Attention: Windsor Davies
Telecopy: 212-930-5098
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
Attention: Russ Rockenbach
Telecopy: 312-630-6062
<PAGE>
SanPaolo IMI S.p.A.
245 Park Avenue
New York, NY 10167
Attention: Robert Wurster
Telecopy: 212-692-3178
Westdeutsche Landesbank Girozentrale,
New York Branch
1211 Avenue of the Americas, 24th Floor
New York, NY 10036
Attention: Cynthia Niesen
Telecopy: 212-852-6307
<PAGE>
EXHIBIT A
FORM OF BORROWING NOTICE FOR REVOLVING CREDIT LOANS
Date:
The Chase Manhattan Bank, as Administrative Agent under the
Credit Agreement referred to below
Gentlemen:
Pursuant to subsection 2.1 of the 364-Day Amended and
Restated Credit Agreement, dated as of June 29, 1999, among Dow Jones &
Company, Inc. (the "Company"), the Lenders parties thereto, The Chase
Manhattan Bank, as Administrative Agent, Westdeutsche Landesbank
Girozentrale, as Documentation Agent, and Fleet National Bank, as
Syndication Agent (as the same may be amended, supplemented or otherwise
modified, the "Credit Agreement"), the Company hereby requests that the
following Revolving Credit Loans be made on [date] as follows:
(1). Total Amount of Revolving Credit Loans $__________
(2). Amount of (1) to be allocated to $__________
Eurodollar Loans
(3). Amount of (1) to be allocated to
Alternate Base Rate Loans $__________
(4). Interest Periods and amounts to be allocated
thereto in respect of Eurodollar Loans
(amounts must total (2)):
(i) one month $__________
(ii) two months $__________
(iii) three months $__________
(iv) six months $__________
Total Eurodollar Loans $__________
<PAGE>
NOTE: EACH AMOUNT APPEARING IN EACH LINE ABOVE MUST
BE AT LEAST EQUAL TO $10,000,000 AND IN A WHOLE MULTIPLE OF
$1,000,000.
The Company hereby certifies that the conditions set forth
in Section 4.2 of the Credit Agreement have been satisfied.
Terms defined in the Credit Agreement shall have the same
meanings when used herein.
Very truly yours,
DOW JONES & COMPANY, INC.
By: _________________________
Name:
Title:
<PAGE>
EXHIBIT B
FORM OF COMPETITIVE LOAN REQUEST
___________, ____
The Chase Manhattan Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Dear Sirs:
Reference is made to the 364-Day Amended and Restated
Credit Agreement, dated as of June 29, 1999, among Dow Jones & Company,
Inc. (the "Company"), the Lenders parties thereto, The Chase Manhattan
Bank, as Administrative Agent, Westdeutsche Landesbank Girozentrale, as
Documentation Agent, and Fleet National Bank, as Syndication Agent (as
the same may be amended, supplemented or otherwise modified, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein as
therein defined.
This is an [Index Rate] [Absolute Rate] Competitive Loan
Request pursuant to subsection 2.2 of the Credit Agreement requesting
quotes for the following Competitive Loans:
Aggregate Principal Amount $________ $________ $________
Competitive Loan Date ________ ________ ________
[Interest Period]* ______________________
Maturity Date** ______________________
Interest Payment Dates ______________________
Very truly yours,
DOW JONES & COMPANY, INC.
By: _____________________
Name:
Title:
<PAGE>
Note: Pursuant to the Credit Agreement, a Competitive Loan Request may be
transmitted in writing, by telex or by facsimile transmission, or by
telephone, immediately confirmed by telex or facsimile transmission. In
any case, a Competitive Loan Request shall contain the information
specified in the second paragraph of this form.
* Insert only in an Index Rate Competitive Loan Request.
** In an Index Rate Competitive Loan Request, insert last day of
Interest Period.
<PAGE>
EXHIBIT C
FORM OF COMPETITIVE LOAN OFFER
___________, ____
The Chase Manhattan Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Dear Sirs:
Reference is made to the 364-Day Amended and Restated
Credit Agreement, dated as of June 29, 1999, among Dow Jones & Company,
Inc. (the "Company"), the Lenders parties thereto, The Chase Manhattan
Bank, as Administrative Agent, Westdeutsche Landesbank Girozentrale, as
Documentation Agent, and Fleet National Bank, as Syndication Agent (as
the same may be amended, supplemented or otherwise modified, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein as
therein defined.
In accordance with subsection 2.2 of the Credit Agreement,
the undersigned Lender offers to make Competitive Loans thereunder in
the following amounts with the following maturity dates:
Competitive Loan Date: _________, ____
Aggregate Maximum Amount: $___________
Maturity Date 1:
Maximum Amount $____________
Rate* _____ Amount $________
Rate* _____ Amount $________
Maturity Date 2:
Maximum Amount $____________
Rate* _____ Amount $________
Rate* _____ Amount $________
<PAGE>
Maturity Date 3:
Maximum Amount $____________
Rate* _____ Amount $________
Rate* _____ Amount $________
Very truly yours,
[NAME OF OFFERING LENDER]
By:_______________________
Name:
Title:
Telephone No.:
Fax No.:
* In the case of Index Rate Competitive Loans, insert margin bid.
In the case of Absolute Rate Competitive Loans, insert fixed rate
bid.
<PAGE>
EXHIBIT D
FORM OF COMPETITIVE LOAN CONFIRMATION
___________, ____
The Chase Manhattan Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Dear Sirs:
Reference is made to the 364-Day Amended and Restated
Credit Agreement, dated as of June 29, 1999, among Dow Jones & Company,
Inc. (the "Company"), the Lenders parties thereto, The Chase Manhattan
Bank, as Administrative Agent, Westdeutsche Landesbank Girozentrale, as
Documentation Agent, and Fleet National Bank, as Syndication Agent (as
the same may be amended, supplemented or otherwise modified, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein as
therein defined.
In accordance with subsection 2.2 of the Credit Agreement,
the undersigned accepts and confirms the offers by Competitive Loan
Lender(s) to make Competitive Loans to the undersigned on _____,______,
[Competitive Loan Date] under said subsection 2.2 in the (respective)
amount(s) set forth on the attached list of Competitive Loans offered.
Very truly yours,
DOW JONES & COMPANY, INC.
By: _______________________
Name:
Title:
[Company to attach Competitive Loan offer list prepared
by Administrative Agent with accepted amount entered by the Company to
right of each Competitive Loan offer].
<PAGE>
EXHIBIT E
FORM OF EXEMPTION CERTIFICATE
Reference is made to the 364-Day Amended and Restated Credit
Agreement, dated as of June 29, 1999 (as amended, supplemented or
otherwisemodified from time to time, the "Credit Agreement") among Dow
Jones & Company, Inc., a Delaware corporation (the "Company"), the several
banks and other financial institutions or entities from time to time
parties to this Agreement (the "Lenders"), The Chase Manhattan Bank,
as Administrative Agent, Westdeutsche Landesbank Girozentrale,
as Documentation Agent, and Fleet National Bank, as Syndication Agent.
Capitalized terms used herein that are not defined herein shall have the
meanings ascribed to them in the Credit Agreement.
______________________ (the "Non-U.S. Lender") is providing this
certificate pursuant to subsection 2.12(d) of the Credit Agreement. The
Non-U.S. Lender hereby represents and warrants that:
1. The Non-U.S. Lender is the sole record and beneficial owner
of the Loans or the obligations evidenced by Notes in respect of which it
is providing this certificate;
2. The Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "Code").
In this regard, the Non-U.S. Lender further represents and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or other
legal requirements as a bank in any jurisdiction;
(b) the Non-U.S. Lender has not been treated as a bank for
purposes of any tax, securities law or other filing or submission made to
any Governmental Authority, any application made to a rating agency or
qualification for any exemption from tax, securities law or other legal
requirements; and
(c) the Non-U.S. Lender is acquiring an interest in the Loans
or Notes for its own account, and the Non-U.S. Lender will not hold such an
interest, directly or indirectly, for or on behalf of, or as nominee for,
any bank.
3. The Non-U.S. Lender meets all of the requirements under
Code Section 871(h) or 881(c) to be eligible for a complete exemption from
withholding of taxes on interest payments made to it under the Credit
Agreement, including without limitation that it is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Company and is not a controlled foreign corporation related to the Company
(within the meaning of Section 864(d)(4) of the Code); and
<PAGE>
4. The Non-U.S. Lender shall promptly notify the Company
and the Administrative Agent if any of the representations and warranties
made herein are no longer true and correct.
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate.
[NAME OF NON-U.S. LENDER]
By: _______________________________
Name:
Title:
Date: ____________________
<PAGE>
EXHIBIT F
FORM OF OPINION OF PETER G. SKINNER, ESQ.
______________________, 1999
The Chase Manhattan Bank,
as Administrative Agent
under the Agreement, as
hereinafter defined,
Westdeutsche Landesbank Girozentrale,
as Documentation Agent under
the Agreement,
Fleet National Bank, as Syndication
Agent under the Agreement
and
Each of the Lenders parties to the
Agreement
Ladies and Gentlemen:
In my capacity as General Counsel, I have acted as counsel for
Dow Jones & Company, Inc., a Delaware corporation (the "Company"), in
connection with the execution and delivery of the 364-Day Amended and
Restated Credit Agreement, dated as of June 29, 1999, among Dow Jones
& Company, Inc. (the "Company"), the Lenders parties thereto, The Chase
Manhattan Bank, as Administrative Agent, Westdeutsche Landesbank
Girozentrale, as Documentation Agent, and Fleet National Bank, as
Syndication Agent (as the same may be amended, supplemented or otherwise
modified, the "Agreement").
This opinion is delivered to you pursuant to Section 4 of
the Agreement. Terms used herein which are defined in the Agreement shall
have the respective meanings set forth in the Agreement, unless otherwise
defined herein.
In connection with this opinion, I have examined executed
copies of the Agreement and such corporate documents and records of the
Company and its Subsidiaries, certificates of public officials and officers
of the Company and its Subsidiaries, and such other documents, as I have
deemed necessary or appropriate for the purposes of this opinion. In
stating my opinion, I have assumed the genuineness of all signatures of,
and the authority of, persons signing the Agreement on behalf of parties
thereto other than the Company, the authenticity of all documents submitted
to me as originals and the conformity to
<PAGE>
authentic original documents of all documents submitted to me as certified,
conformed or photostatic copies.
Based upon the foregoing, I am of the opinion that:
1. Each of the Company and its Subsidiaries (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (b) has the corporate power and
authority and the legal right to own and operate its property, to
lease the property it operates under lease and to conduct the business
in which it is currently engaged and (c) to the best of my knowledge,
is duly qualified as a foreign corporation and in good standing under
the laws of each jurisdiction where its ownership, lease or operation
of property or the conduct of its business requires such qualification
and where the failure to be so qualified would have a material adverse
effect on the Company and its Subsidiaries taken as a whole.
2. The Company has the corporate power and authority to make,
deliver and perform the Agreement and to borrow thereunder and has taken
all necessary corporate action to authorize the borrowings on the terms
and conditions of the Agreement and to authorize the execution, delivery
and performance of the Agreement and any promissory notes that may be
issued after the date hereof to evidence the loans consistent with the
terms of the Agreement. No consent or authorization of, filing with,
or other act by or in respect of any Governmental Authority, is required
to be obtained by the Company in connection with the borrowings thereunder
or with the execution, delivery, performance, validity or enforceability
of the Agreement.
3. The Agreement has been duly executed and delivered on
behalf of the Company and constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar law
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in
equity or at law). No opinion is expressed as to the availability of
the remedy of specific performance.
4. The execution, delivery and performance of the Agreement
by the Company and the use of the proceeds of the borrowings thereunder
as provided therein, will not violate any provision of any existing law
or regulation applicable to the Company, or, to the best of my knowledge,
of any order, judgment, award or decree of any court, arbitrator or
governmental authority binding upon or applicable to the Company, or of
the Certificate of Incorporation or By-Laws of the Company, or, to the
best of my knowledge, of any securities issued by the Company, or, to the
best of my knowledge, of any mortgage, indenture, lease, contract or other
agreement, instrument or undertaking by which the Company or any of its
Subsidiaries or any of their respective assets may be bound, and, to the
best of my knowledge, will not result in or require the creation or
imposition of any Lien on any of its or their respective properties,
assets or revenues pursuant to the provisions of any such mortgage,
indenture, lease, contract or other agreement, instrument or undertaking.
<PAGE>
5. To the best of my knowledge, no litigation, investigation
or proceeding of or before any court, arbitrator or governmental authority
is pending or threatened by or against the Company or any of its
Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to the Agreement or any of the transactions
contemplated thereby, or (b) which, if adversely determined, would have a
material adverse effect on the business, operations, property or financial
or other condition of the Company and its Subsidiaries taken as a whole.
6. The Company is not an "investment company" or a company
"controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended, or a "holding company," or a
"subsidiary company" of a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
7. Assuming that the Company will comply with the provisions
of the Credit Agreement relating to the use of proceeds, the making of the
Loans under the Credit Agreement will not violate Regulation T, U or X of
the Board of Governors of the Federal Reserve System.
The opinions expressed herein are solely for the benefit of
the Administrative Agent, the Documentation Agent, the Syndication Agent
and the Lenders in connection with the Agreement and may not be relied on
in any manner or for any purpose by any other person or entity.
Very truly yours,
<PAGE>
EXHIBIT G
FORM OF OFFICER'S CERTIFICATE
Pursuant to Section 4 of the 364-Day Amended and Restated
CreditAgreement, dated as of June 29, 1999, among Dow Jones & Company,
Inc. (the "Company"), the Lenders parties thereto, The Chase Manhattan
Bank, as Administrative Agent, Westdeutsche Landesbank Girozentrale, as
Documentation Agent, and Fleet National Bank, as Syndication Agent (as
the same may be amended, supplemented or otherwise modified, the "Credit
Agreement"), the undersigned ________________ and ______________________
of the Company hereby certify as follows:
1. The representations and warranties of the Company set forth
in the Credit Agreement or which are contained in any certificate, document
or financial or other statement furnished pursuant to or in connection with
the Credit Agreement are true and correct on and as of the date hereof with
the same effect as if made on the date hereof; and
2. On the date hereof, no Default or Event of Default (both
as defined in the Credit Agreement) has occurred and is continuing under
the Credit Agreement as of the date hereof or after giving effect to any
Loans to be made on the date hereof.
IN WITNESS WHEREOF, each of the undersigned has hereunto set
his name.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
Date:
<PAGE>
EXHIBIT H
FORM OF CERTIFICATE OF THE
SECRETARY OF THE COMPANY
Pursuant to Section 4 of the 364-Day Amended and Restated
Credit Agreement, dated as of June 29, 1999, among Dow Jones & Company,
Inc. (the "Company"), the Lenders parties thereto, The Chase Manhattan
Bank, as Administrative Agent, Westdeutsche Landesbank Girozentrale, as
Documentation Agent, and Fleet National Bank, as Syndication Agent (as
the same may be amended, supplemented or otherwise modified, the "Credit
Agreement"), the undersigned Secretary of the Company hereby certifies
as follows:
1. Attached hereto as Annex I is a true and complete copy
of resolutions duly adopted by the Board of Directors of the Company on
February 21, 1996, and such resolutions have not in any way been
rescinded or modified and have been in full force and effect since their
adoption to and including the date hereof and are now in full force and
effect; and such resolutions are the only corporate proceedings of the
Company now in force relating to or affecting the matters referred to
therein.
2. Attached hereto as Annex II is a true and complete copy
of the By-laws of the Company as in effect at all times since May 17, 1989,
to and including the date hereof.
3. Attached hereto as Annex III is a true and complete copy
of the Restated Certificate of Incorporation of the Company, as amended,
as in effect at all times since April 25, 1989, to and including the date
hereof, and no action has been taken to amend, repeal, modify or revoke
such certificate.
4. The following persons are now duly elected and qualified
officers of the Company, holding the offices indicated next to their
respective names below, and such officers have held such offices with the
Company at all times since the respective dates set forth opposite their
names, to and including the date hereof, and the signatures appearing
opposite their respective names below are the true and genuine signatures
of such officers, and each of such officers is duly authorized to execute
and deliver on behalf of the Company the Credit Agreement, any Notes of
the Company to be issued pursuant thereto and any certificate or other
document to be delivered by the company pursuant to the Credit Agreement
and to act as Responsible Officers on behalf of the Company under the
Credit Agreement:
<PAGE>
Month & Year
Name Office Signature of Election
Jerome H. Bailey Executive Vice April 1999
President and Chief
Financial Officer
Thomas G. Hetzel Vice President/Finance April 1999
Thomas W. McGuirl Treasurer and Assistant April 1999
Secretary
IN WITNESS WHEREOF, the undersigned has hereunto set his
name and affixed the corporate seal of the Company.
Dated: June 29, 1999
Peter G. Skinner
Executive Vice President
General Counsel and Secretary
(CORPORATE SEAL)
I, Thomas G. Hetzel, Vice President/Finance of the Company,
hereby certify that Peter G. Skinner, whose genuine signature appears above,
is, and has been at all times since April 21, 1999, a duly elected,
qualified and acting Secretary of the Company.
Dated: June 29, 1999
_________________________
Thomas G. Hetzel
Vice President/Finance
<PAGE>
EXHIBIT I
FORM OF
COMPETITIVE LOAN ASSIGNMENT
Reference is made to the 364-Day Credit Agreement, dated as
of June 29, 1999 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among Dow Jones & Company, Inc.
(the "Company"), the Lenders named therein, The Chase Manhattan Bank, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"), Westdeutsche Landesbank Girozentrale, as Documentation Agent,
and Fleet National Bank, as Syndication Agent. Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor")
and the Assignee identified on Schedule l hereto (the "Assignee") agree as
follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby
irrevocably purchases and assumes from the Assignor without recourse to
the Assignor, as of the Effective Date (as defined below), the Competitive
Loan (the "Assigned Loan") and any Note evidencing such Competitive Loan
described in Schedule 1 hereto.
2. The Assignor (a) 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 with respect to the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, any Notes or
any other instrument or document furnished pursuant thereto, other than
that the Assignor has not created any adverse claim upon the interest
being assigned by it hereunder and that such interest is free and clear
of any such adverse claim; (b) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of
the Company, any of its Subsidiaries or any other obligor or the
performance or observance by the Company, any of its Subsidiaries or any
other obligor of any of their respective obligations under the Credit
Agreement, any Notes or any other instrument or document furnished
pursuant hereto or thereto; and (c) attaches any Notes held by it
evidencing the Assigned Loan and (i) requests that the Administrative
Agent, upon request by the Assignee, exchange the attached Notes for a
new Note or Notes payable to the Assignee and (ii) if the Assignor has
retained any interest in any Note evidencing the Assigned Loan, requests
that the Administrative Agent exchange the attached Notes for a new
Note or Notes payable to the Assignor, in each case in amounts which
reflect the assignment being made hereby (and after giving effect to
any other assignments which have become effective on the Effective Date).
<PAGE>
3. The Assignee (a) represents and warrants that it is
legally authorized to enter into this Competitive Loan Assignment; (b)
confirms that it has received a copy of the Credit Agreement, together
with copies of the financial statements delivered pursuant to subsection
3.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into
this Competitive Loan Assignment; (c) agrees that it will, independently
and without reliance upon the Assignor, the Administrative Agent or any
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 permitted by the Credit Agreement, any Notes
or any other instrument or document furnished pursuant hereto or thereto;
(d) appoints and authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise such powers and discretion under
the Credit Agreement, any Notes or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as
are incidental thereto; and (e) agrees that it will be bound by the
terms and conditions contained in the Credit Agreement applicable to it
(including, without limitation, the terms and conditions contained in
subsections 9.6 and 9.7 thereof) and will perform in accordance with
such terms all the obligations which by the terms of the Credit Agreement
are required to be performed by it, including its obligations pursuant
to subsection 2.12 of the Credit Agreement.
4. The effective date of this Competitive Loan Assignment
shall be the Effective Date of Assignment described in Schedule 1 hereto
(the "Effective Date"). Following the execution of this Competitive Loan
Assignment, it will be delivered to the Administrative Agent for acceptance
by it and recording by the Administrative Agent pursuant to the Credit
Agreement, effective as of the Effective Date (which shall not,unless
otherwise agreed to by the Administrative Agent, be earlier than five
Business Days after the date of such acceptance and recording by the
Administrative Agent).
5. [Option 1: Upon such acceptance and recording, from
and after the Effective Date, the Assignor shall act as collection agent
for the Assignee hereunder, and the Administrative Agent shall pay all
amounts (including payments of principal, interest, fees and other
amounts) received from the Company which are allocable to the Assigned
Loan and any Note evidencing such Assigned Loan directly to the Assignor
without any further liability to the Assignee.] [Option 2: Upon such
acceptance and recording, from and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned
Loan and any Note evidencing such Assigned Loan (including payments of
principal, interest, fees and other amounts) to the Assignor for amounts
which have accrued to the Effective Date and to the Assignee for amounts
which have accrued subsequent to the Effective Date.]
6. Any payments to the Competitive Loan Assignee in
respect of the Assigned Loan shall be made in accordance with the payment
instructions set forth on Schedule 2 hereto.
<PAGE>
7. This Competitive Loan Assignment shall be governed by
and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Competitive Loan Assignment to be executed as of the date first above
written by their respective duly authorized officers on Schedule 1 hereto.
<PAGE>
Schedule 1
to Competitive Loan Assignment
Name of Assignor:___________________
Name of Assignee:___________________
Address for Notices:________________
Contact: ___________________________
Title: _____________________________
Telephone No.: _____________________
Fax No.: ___________________________
Lending Office Address:
Contact:
Title:
Telephone No.:
Fax No.:
Effective Date of Assignment:
____________________________ _________________________ _____________
Competitive Loan Assigned Amount Assigned Maturity Date
$_________
__________________________ _________________________
[Name of Assignee] [Name of Assignee}
By: By:
Name: Name:
Title: Title:
Accepted:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By:
Name:
Title:
<PAGE>
Schedule 2
to Competitive Loan Assignment
Payment Instructions
<PAGE>
EXHIBIT J
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Amended and Restated
Credit Agreement, dated as of June 29, 1999 (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"),
among Dow Jones & Company, Inc. (the "Company"), the Lenders named
therein, The Chase Manhattan Bank, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent"), Westdeutsche
Landesbank Girozentrale, as Documentation Agent, and Fleet National Bank,
as Syndication Agent. Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor")
and the Assignee identified on Schedule l hereto (the "Assignee") agree
as follows:
1. The Assignor hereby irrevocably sells and assigns to
the Assignee without recourse to the Assignor, and the Assignee hereby
irrevocably purchases and assumes from the Assignor without recourse to
the Assignor, as of the Effective Date (as defined below), the interest
described in Schedule 1 hereto (the "Assigned Interest") in and to the
Assignor's rights and obligations under the Credit Agreement.
2. The Assignor (a) 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
with respect to the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, any Notes or
any other instrument or document furnished pursuant thereto, other than
that the Assignor has not created any adverse claim upon the interest
being assigned by it hereunder and that such interest is free and clear
of any such adverse claim; (b) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Company, any of its Subsidiaries or any other obligor or the performance
or observance by the Company, any of its Subsidiaries or any other
obligor of any of their respective obligations under the Credit Agreement,
any Notes or any other instrument or document furnished pursuant hereto
or thereto; and (c) attaches any Notes held by it evidencing the Assigned
Interest and (i) requests that the Administrative Agent, upon request by
the Assignee, exchange the attached Notes for a new Note or Notes payable
to the Assignee and (ii) if the Assignor has retained any interest in any
Note evidencing the Assigned Interest, requests that the Administrative
Agent exchange the attached Notes for a new Note or Notes payable to the
Assignor, in each case in amounts which reflect the assignment being made
hereby (and after giving effect to any other assignments which have become
effective on the Effective Date).
<PAGE>
3. The Assignee (a) represents and warrants that it is
legally authorized to enter into this Assignment and Acceptance; (b)
confirms that it has received a copy of the Credit Agreement, together
with copies of the financial statements delivered pursuant to subsection
3.1 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; (c) agrees that it will, independently
and without reliance upon the Assignor, the Administrative 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, any Notes or any
other instrument or document furnished pursuant hereto or thereto; (d)
appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers and discretion under the
Credit Agreement or any other instrument or document furnished pursuant
hereto or thereto as are delegated to the Administrative Agent by the
terms thereof, together with such powers as are incidental thereto; and
(e) agrees that it will be bound by the provisions of the Credit Agreement
and will perform in accordance with its terms all the obligations which
by the terms of the Credit Agreement are required to be performed by it
as a Lender, including its obligations pursuant to subsection 2.12 of the
Credit Agreement.
4. The effective date of this Assignment and Acceptance
shall be the Effective Date of Assignment described in Schedule 1 hereto
(the "Effective Date"). Following the execution of this Assignment and
Acceptance, it will be delivered to the Administrative Agent for
acceptance by it and recording by the Administrative Agent pursuant to
the Credit Agreement, effective as of the Effective Date (which shall
not, unless otherwise agreed to by the Administrative Agent, be earlier
than five Business Days after the date of such acceptance and recording
by the Administrative Agent).
5. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in
respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignor for amounts which have
accrued to the Effective Date and to the Assignee for amounts which have
accrued subsequent to the Effective Date.
6. From and after the Effective Date, (a) 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 shall be bound by the provisions thereof, and (b)
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.
<PAGE>
7. This Assignment and Acceptance shall be governed by
and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above
written by their respective duly authorized officers on Schedule 1 hereto.
Schedule 1
to Assignment and Acceptance
Name of Assignor: ________________________
Name of Assignee: ________________________
Effective Date of Assignment: ____________
_____________________________ _________________________
Principal Amount Assigned Commitment Percentage Assigned
$________________ ___.________%
_____________________________ __________________________
[Name of Assignee] [Name of Assignee]
By: By:
Name: Name:
Title: Title:
__________________________
Calculate the Commitment Percentage that is assigned to at
least 15 decimal places and show as a percentage of the
aggregrate commitments of all Lenders.
<PAGE>
Accepted: Consented To:
THE CHASE MANHATTAN BANK, as [DOW JONES & COMPANY, INC.]
Administrative Agent
By: By:
Name: Name:
Title: Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By:
Name:
Title:
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000029924
<NAME> DOW JONES & COMPANY, INC.
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> APR-1-1999
<PERIOD-END> JUN-30-1999
<CASH> 26,666
<SECURITIES> 0
<RECEIVABLES> 262,012
<ALLOWANCES> 7,996
<INVENTORY> 12,832
<CURRENT-ASSETS> 426,350
<PP&E> 1,667,802
<DEPRECIATION> 1,019,378
<TOTAL-ASSETS> 1,467,445
<CURRENT-LIABILITIES> 557,886
<BONDS> 149,916
0
0
<COMMON> 102,181
<OTHER-SE> 964,113
<TOTAL-LIABILITY-AND-EQUITY> 1,467,445
<SALES> 510,571
<TOTAL-REVENUES> 510,571
<CGS> 228,540
<TOTAL-COSTS> 228,540
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,242
<INCOME-PRETAX> 98,405
<INCOME-TAX> 41,193
<INCOME-CONTINUING> 57,212
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 57,212
<EPS-BASIC> .63
<EPS-DILUTED> .62
</TABLE>
