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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: November 15, 1994
McGRAW-HILL, INC.
------------------------------------------------------
(Exact name of Registrant as specified in its charter)
NEW YORK 1-1023 13-1026995
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(State or other (Commission (IRS Employer
jurisdiction of File No.) Identification No.)
incorporation or
organization)
1221 Avenue of the Americas, New York, New York 10020
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(Address of Principal Executive Offices) (Zip Code)
(212) 512-2324
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(Registrant's telephone number, including area code)
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Item 5. Other Events
On November 7, 1994, the Registrant further amended the $500
million credit agreement dated as of November 12, 1991, as
amended as of November 8, 1993, among the Registrant, the banks
listed therein, and Bankers Trust Company, as agent. The 1994
amendment, among other items, extended the final maturity date
from November 7, 1997 to November 8, 1999 and increased the
total commitment of the banks from $500 million to $800 million.
The $200 million line of credit agreement dated as of November
12, 1991, as amended, expired on November 7, 1994 in accordance
with its terms.
Item 7. Exhibit
(10) Second Amendment dated as of November 7, 1994 to the Credit
Agreement dated as of November 12, 1991 as amended among the
Registrant, the banks listed therein, and Bankers Trust Company,
as agent.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Form 8-K Report to be signed on its behalf by
the undersigned, thereunto duly authorized.
McGraw-Hill, Inc.
By: /s/ Robert N. Landes
-----------------------
Robert N. Landes
Executive Vice President
Dated: November 15, 1994
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EXHIBIT INDEX
(10) Second Amendment dated as of November 7, 1994 to the Credit
Agreement dated as of November 12, 1991 as amended among the
Registrant, the banks listed therein, and Bankers Trust Company,
as agent.
<PAGE> 1
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Item 5. Other Events
On November 7, 1994, the Registrant further amended the $500
million credit agreement dated as of November 12, 1991, as
amended as of November 8, 1993, among the Registrant, the banks
listed therein, and Bankers Trust Company, as agent. The 1994
amendment, among other items, extended the final maturity date
from November 7, 1997 to November 8, 1999 and increased the
total commitment of the banks from $500 million to $800 million.
The $200 million line of credit agreement dated as of November
12, 1991, as amended, expired on November 7, 1994 in accordance
with its terms.
Item 7. Exhibit
(10) Second Amendment dated as of November 7, 1994 to the Credit
Agreement dated as of November 12, 1991 as amended among the
Registrant, the banks listed therein, and Bankers Trust Company,
as agent.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Form 8-K Report to be signed on its behalf by
the undersigned, thereunto duly authorized.
McGraw-Hill, Inc.
By: /s/ Robert N. Landes
-----------------------
Robert N. Landes
Executive Vice President
Dated: November 15, 1994
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EXHIBIT INDEX
(10) Second Amendment dated as of November 7, 1994 to the Credit
Agreement dated as of November 12, 1991 as amended among the
Registrant, the banks listed therein, and Bankers Trust Company,
as agent.
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EXHIBIT 10
EXECUTION
MCGRAW-HILL, INC.
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "SECOND AMENDMENT")
is dated as of November 7, 1994 and entered into by and among MCGRAW-HILL,
INC., a New York corporation (the "BORROWER"), the BANKS signatory hereto
(each, a "BANK" and collectively, the "BANKS"), The Chase Manhattan Bank,
N.A. and Citibank, N.A., as Co-Agents for the Banks (in such capacity, each a
"CO-AGENT" and collectively, the "CO-AGENTS") and BANKERS TRUST COMPANY, a
New York banking corporation, as Agent for the Banks (in such capacity, the
"AGENT").
R E C I T A L S
WHEREAS, the Borrower, certain of the Banks and Agent are parties to
that certain Credit Agreement dated as of November 12, 1991, as amended by that
certain First Amendment to Credit Agreement dated November 8, 1993 (the
"AGREEMENT"; unless otherwise defined in this Second Amendment, capitalized
terms used herein shall have the meanings assigned to such terms in the
Agreement);
WHEREAS, the parties hereto desire to amend the Agreement to, among
other things, (i) increase the amount of the Total Commitment, (ii) extend the
Final Maturity Date thereof, (iii) provide for the payment of a facility fee,
(iv) change the calculation of the Applicable Borrowing Margin, (v) provide for
the payment, under certain circumstances, of a utilization fee and (vi)
eliminate certain financial covenants;
WHEREAS, the parties hereto desire to amend and restate the Revolving
Notes and the Swing Line Note, as necessary, to reflect the amendments to the
Agreement effected by this Second Amendment; and
WHEREAS, certain of the Banks which are currently parties to the
Agreement desire to cease being parties to the Agreement.
NOW, THEREFORE, in consideration of the premises and the terms and
conditions herein contained, the Borrower, the Banks and Agent hereby agree as
follows:
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SECTION 1
DEFINITIONS
1.1 CERTAIN DEFINED TERMS; CONSTRUCTION.
The words "herein", "hereof", "hereunder" and other words of similar
import refer to this Second Amendment as a whole and not to any particular
Section or subsection. The captions herein are for convenience of reference
only and shall not define or limit the provisions hereof. As used herein, the
following terms shall have the following meanings:
`EXITING BANK' means each bank listed on the final signature
page hereof and designated as an Exiting Bank thereon.
`ORIGINAL BANK' means each Bank party to the Agreement prior to
the Second Amendment Effective Date.
`SECOND AMENDED AND RESTATED NOTES' means the Second Amended and
Restated Revolving Notes and the Second Amended and Restated Swing
Line Note, collectively.
`SECOND AMENDED AND RESTATED REVOLVING NOTES' means those
certain promissory notes of the Borrower delivered pursuant to Section
4 hereof in substantially the form of Exhibit A hereto.
`SECOND AMENDED AND RESTATED SWING LINE NOTE' means that certain
promissory note of the Borrower delivered pursuant to Section 4 hereof
in substantially the form of Exhibit B hereto.
`SECOND AMENDMENT EFFECTIVE DATE' shall have the meaning set
forth in Section 4 hereof."
SECTION 2
AMENDMENTS TO THE AGREEMENT
On the basis of the representations and warranties contained in this
Second Amendment, and subject to the terms and conditions of this Second
Amendment, the Banks, the Agent and the Borrower agree as follows:
2.1 ADDITION OF NEW DEFINITIONS.
Subsection 1.1 of the Agreement is hereby amended by adding the
following definitions in the proper alphabetical order:
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"Co-Agents" means each of Citibank, N.A. and the Chase
Manhattan Bank, N.A. in their capacities as Co-Agents under this
Agreement.
`Facility Fee' has the meaning assigned to that term in Section
2.7D.
`FACILITY FEE PAYMENT DATE' has the meaning assigned to that
term in Section 2.7D.
`SECOND AMENDMENT' means the Second Amendment dated as of
November 7, 1994 to this Agreement.
`SECOND AMENDMENT EFFECTIVE DATE' has the meaning set forth in
Section 4 of the Second Amendment.
`UTILIZATION FEE' has the meaning assigned to that term in
Section 2.7E."
2.2 AMENDMENT OF DEFINITIONS.
The definition of "Applicable Borrowing Margin" is hereby amended to
read in its entirety as follows:
"`APPLICABLE BORROWING MARGIN' means a rate per annum equal to:
(a) with respect to Syndicated Loans or Swing
Line Loans that are Prime Rate Loans:
(i) 0%; or
(ii) (A) upon the occurrence and during
the continuance of an Event of Default under Section
7.1, 7.7 or 7.8 hereof, 2%; or (B) after 100 days
have elapsed since the occurrence and during the
continuance of any other Event of Default, 1%; and
(b) with respect to Syndicated Loans that are CD
Rate Loans:
(i) at any time of the calculation
thereof, the Applicable Borrowing Margin set forth
opposite the then- current Debt Rating of the
Borrower in the chart below, as such Debt Rating is
set forth on the most recent Interest Rate
Certificate delivered to the Agent and the Banks:
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<TABLE>
<CAPTION>
APPLICABLE
BORROWING
DEBT RATING MARGIN
<S> <C>
A/A2 and Higher .285%
A-/A3 .315%
BBB+/Baa1 .355%
BBB/Baa2 and Lower .400%
</TABLE>
(ii) (A) upon the occurrence and during
the continuance of an Event of Default under Section
7.1, 7.7 or 7.8 hereof, the rate as determined in
accordance with clause (b)(i) above,plus 2%; or (B)
after 100 days have elapsed since the occurrence and
during the continuance of any other Event of Default,
the rate as determined in accordance with clause
(b)(i) above,plus 1%; and
(c) with respect to Syndicated Loans that are
Eurodollar Rate Loans:
(i) at any time of the calculation
thereof, the Applicable Borrowing Margin set forth
opposite the then-current Debt Rating of the
Borrower in the chart below, as such Debt Rating is
set forth on the most recent Interest Rate
Certificate delivered to the Agent and the Banks:
<TABLE>
<CAPTION>
APPLICABLE
BORROWING
DEBT RATING MARGIN
<S> <C>
A/A2 and Higher .160%
A-/A3 .190%
BBB+/Baa1 .230%
BBB/Baa2 and Lower .275%
</TABLE>
(ii) (A) upon the occurrence and during
the continuance of an Event of
Default under Section 7.1, 7.7 or
7.8 hereof, the rate as determined
in accordance with clause (c)(i)
above,plus 2%; or (B) after 100 days
have elapsed since the occurrence
and
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during the continuance of any other
Event of Default, the rate as
determined in accordance with clause
(c)(i) above, plus 1%."
The definition of "COMMITMENT" is hereby amended to read in its
entirety as follows:
"`COMMITMENT' means, at any time any determination thereof is
to be made, the maximum commitment (whether or not then utilized) of
each Bank then in effect to extend credit hereunder, which in the case
of each Bank shall be the amount specified on its signature page to
the Second Amendment or on Schedule I to any relevant Transfer
Supplement, as the case may be."
The definition of "FINAL MATURITY DATE" is hereby amended to read in
its entirety as follows:
"`FINAL MATURITY DATE' means November 8, 1999."
The definition of "INTEREST RATE CERTIFICATE" is hereby amended to
read in its entirety as follows:
"`INTEREST RATE CERTIFICATE' means an Officer's Certificate
setting forth (i) the Debt Rating for the Borrower on the date of such
Interest Rate Certificate and (ii) in the case of any Interest Rate
Certificate delivered (a) upon the making of any Fixed Rate Loan and
(b) while any Fixed Rate Loan is outstanding, the Applicable Borrowing
Margin in respect of each Fixed Rate Loan being made or then
outstanding, as the case may be."
The definition of "PAYMENT OFFICE" is hereby amended to read in its
entirety as follows:
"`PAYMENT OFFICE' means the office of the Agent or any Bank,
as the case may be, designated as such on the signature pages of the
Second Amendment or such other office as to which the Agent or such
Bank shall notify the Borrower, the Agent and other Banks in
writing."
The definition of "PRO RATA SHARE" is hereby amended to read in its
entirety as follows:
"`PRO RATA SHARE' means, when used with reference to any Bank
and any described aggregate or total amount, the percentage designated
as such Bank's Pro Rata Share set forth under the name of such Bank on
the applicable signature page of the Second Amendment or on Schedule I
to any relevant Transfer Supplement, as the case may be."
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The definition of "REVOLVING NOTES" is hereby amended to read in its
entirety as follows:
"`REVOLVING NOTES' means the promissory notes of the Borrower
issued pursuant to Section 2.4A hereof in substantially the form of
Exhibit A to the Second Amendment, as such promissory notes may be
amended, restated, supplemented or otherwise modified from time to
time in accordance with the terms hereof and in effect."
The definition of "SWING LINE NOTE" is hereby amended to read in its
entirety as follows:
"`SWING LINE NOTE' means the promissory note of the Borrower
issued pursuant to Section 2.12D and in substantially the form of
Exhibit B to the Second Amendment, as such Swing Line Note may be
amended, restated, supplemented or otherwise modified from time to
time in accordance with the terms hereof and in effect."
The definition of "TOTAL COMMITMENT" is hereby amended to read in
its entirety as follows:
"`TOTAL COMMITMENT' means, as at any date of determination,
the lesser of (i) $800,000,000 or (ii) the aggregate Commitments of
all the Banks then in effect (as such Commitments may be adjusted from
time to time pursuant to the second sentence of Section 2.1 hereof)
plus the aggregate principal amount of Competitive Bid Loans and Swing
Line Loans then outstanding, if any."
The following definitions are hereby deleted in their entirety:
"CONSOLIDATED INTEREST EXPENSE COVERAGE RATIO", "INDEBTEDNESS
TO EQUITY RATIO" and "LINE OF CREDIT".
2.3 THE REVOLVING NOTES.
Subsection 2.4A of the Agreement is hereby amended (i) by deleting the
reference to "the First Amendment Effective Date" contained in clause (ii)
thereof and substituting a reference to "the Second Amendment Effective Date"
therefor, and (ii) by deleting the reference to "Exhibit A to the First
Amendment" contained in clause (vii) thereof and substituting a reference to
"Exhibit A to the Second Amendment" therefor.
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2.4 AMENDMENT OF THE BANKS' COMMITMENT COMMISSIONS AND ADDITION OF
UTILIZATION FEE.
Subdivision (ii) of subsection 2.7A of the Agreement is hereby amended
to read in its entirety as follows:
"(ii) in the case of Commitment Commissions payable after
the First Amendment Effective Date to but excluding the Second
Amendment Effective Date, in an amount equal to the number of basis
points set forth opposite the then-current Debt Rating of the Borrower
in the chart below:
<TABLE>
<CAPTION>
NUMBER OF
DEBT RATING BASIS POINTS
<S> <C>
A/A2 and Higher 13.00
A-/A3 18.00
BBB+/Baa1 and BBB/Baa2 22.00
BBB- and Lower 25.00
</TABLE>
multiplied by the full amount of the Total Commitment (as in effect on
and after the First Amendment Effective Date but prior to the Second
Amendment Effective Date).
All Commitment Commissions shall be payable in arrears on the
last day of each Fiscal Quarter of each year, on the First Amendment
Effective Date, and on the Second Amendment Effective Date (each such
day, a "COMMITMENT COMMISSION PAYMENT DATE"), and the applicable
Debt Rating shall be determined by reference to the most recent
Interest Rate Certificate delivered to the Agent and the Banks.
Payment of the Commitment Commissions will commence on the first
Commitment Commission Payment Date to occur after the Effective Date,
and the amount of Commitment Commissions payable on any Commitment
Commission Payment Date shall be calculated on the basis of a 360-day
year and the actual number of days elapsed since (i) the Effective
Date, in the case of the first such payment, and (ii) the previous
Commitment Commission Payment Date, with respect to subsequent
payments."
Subsection 2.7 is hereby further amended by amending and restating
subdivision D thereof as set forth below and adding a new subdivisions E and F
as set forth below:
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"`D. BANKS' FACILITY FEE. Borrower agrees to pay, from
and after the Second Amendment Effective Date, to Agent for
distribution to each Bank based upon its Pro Rata Share, a facility
fee (the "FACILITY FEE") in an amount equal to the number of basis
points set forth opposite the then current Debt Rating of the Borrower
in the chart below:
<TABLE>
<CAPTION>
NUMBER OF
DEBT RATING BASIS POINTS
<S> <C>
A/A2 and Higher 9.00
A-/A3 12.50
BBB+/Baa1 15.00
BBB/Baa2 and Lower 17.50
</TABLE>
multiplied by the full amount of the Total Commitment (as in effect on
and after the Second Amendment Effective Date).
The Facility Fee shall be payable in arrears on the last day of
each Fiscal Quarter of each year and on the date the Total Commitment
expires or terminates (each such day, a "FACILITY FEE PAYMENT
DATE"), and the applicable Debt Rating shall be determined by
reference to the most recent Interest Rate Certificate delivered to
the Agent and the Banks. Payment of the Facility Fee will commence on
the first Facility Fee Payment Date to occur after the Second
Amendment Effective Date, and the amount of the Facility Fee payable
on any Facility Fee Payment Date shall be calculated on the basis of a
360-day year and the actual number of days elapsed since (i) the
Second Amendment Effective Date, in the case of the first such
payment, and (ii) the previous Facility Fee Payment Date, with respect
to subsequent payments."
"E. BANKS' UTILIZATION FEE. Borrower agrees to pay, from
and after the Second Amendment Effective Date, to the Agent for
distribution to each Bank based upon its Pro Rata Share, a utilization
fee (the "UTILIZATION FEE") equal to .075% per annum multiplied by
the aggregate principal amount of Syndicated Loans and Swing Line
Loans outstanding from time to time; provided that such Utilization
Fee shall only be payable with respect to such time as the aggregate
principal amount of Syndicated Loans and Swing Line Loans equals or
exceeds 50% of the Total Commitments. The Utilization Fee shall be
payable in arrears on the last day of each Fiscal Quarter of each year
and on the date the Total Commitment expires or terminates and shall
be calculated on the basis of a 360-day year and actual number of days
elapsed during the period during which the Utilization Fee accrues.
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F. TIME OF PAYMENT. The Borrower shall make payment of
each Bank's Commitment Commissions, Facility Fee and Utilization Fee
and of the Agent's Fee hereunder, not later than Noon (New York City
time) on the date when due in freely transferable U.S. Dollars and in
immediately available funds, to the Agent at its Payment Office."
2.5 SWING LINE NOTE.
Subsection 2.12D of the Agreement is hereby amended to read in its
entirety as follows:
"D. SWING LINE NOTE. The Borrower shall duly execute and
deliver to BT Co a Swing Line Note substantially in the form of
Exhibit B to the Second Amendment to evidence BT Co's Swing Line
Loans, in the principal amount of $75,000,000."
2.6 CONDITIONS TO INITIAL LOANS.
Subsection 3.1 of the Agreement is hereby amended by deleting the
reference to "Exhibit A to the First Amendment" contained in Paragraph A,
clause 6 thereof and substituting a reference to "Exhibit A to the Second
Amendment" therefor.
2.7 SPECIAL CONDITION TO INITIAL SWING LINE LOANS.
Subsection 3.3 of the Agreement is hereby amended by deleting the
reference to "Exhibit B to the First Amendment" contained therein and
substituting a reference to "Exhibit B to the Second Amendment" therefor.
2.8 DELETION OF CERTAIN FINANCIAL COVENANTS.
Subsection 6.3 is hereby amended by deleting subdivisions B and C in
their entirety.
2.9 ADDITION OF CO-AGENTS.
Section 9 is hereby amended by adding the following Subsection 9.17
thereto.
"9.17 DESIGNATION OF CO-AGENTS.
Each of The Chase Manhattan Bank, N.A. and Citibank, N.A. are
hereby designated as Co-Agents under this Agreement. Co-Agents shall
not have any of the rights or duties of the Agent hereunder."
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SECTION 3
REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Second Amendment, the Borrower
hereby represents and warrants to the Banks that:
3.1 AUTHORIZATION.
The Borrower has all requisite corporate power and authority to
execute and deliver this Second Amendment and to perform the transactions
contemplated hereby and to issue, deliver and make payments in respect of the
Second Amended and Restated Notes. The execution, delivery and performance of
this Second Amendment have been duly authorized by all necessary corporate
action by the Borrower and the issuance, delivery and making of payments in
respect of the Second Amended and Restated Notes have been duly authorized by
all necessary corporate action by the Borrower.
3.2 NO CONFLICT.
The execution, delivery and performance by the Borrower of this Second
Amendment, the issuance, delivery and making of payments in respect of the
Second Amended and Restated Notes by the Borrower and the consummation of any
transaction contemplated by this Second Amendment do not and will not (i)
violate any provision of law applicable to the Borrower, or any of its Material
Subsidiaries, the Certificate of Incorporation or By-laws of the Borrower or
any of its Material Subsidiaries, or any order, judgment or decree of any court
or other agency of government binding on the Borrower or any of its Material
Subsidiaries, (ii) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any contractual obligation of
the Borrower or any of its Material Subsidiaries, (iii) result in or require
the creation or imposition of any Lien upon any of the material properties or
assets of the Borrower or any of its Material Subsidiaries or (iv) require any
approval of stockholders or any approval or consent of any Person under any
contractual obligation of the Borrower or any of its Material Subsidiaries
other than such approvals or consents which have been obtained or will be
obtained on or before the Second Amendment Effective Date; except for any
violation, conflict, default, breach, Lien or lack of approval the existence of
which would not have a Material Adverse Effect.
3.3 GOVERNMENT CONSENTS.
The execution, delivery and performance by the Borrower of this Second
Amendment and the issuance, delivery and making of payments in respect of the
Second Amended and Restated Notes by the Borrower do not and will not require
any registration with, consent or approval of, or notice to, or other action
to, with or by, any federal, state or other governmental authority or
regulatory body other
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than any such registration, consent, approval, notice or other action which has
been duly made, given or taken.
3.4 BINDING OBLIGATIONS.
Each of this Second Amendment and the Second Amended and Restated
Notes has been duly executed and delivered by the Borrower and is the legally
valid and binding obligation of the Borrower, enforceable against the Borrower
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles relating to
enforceability.
3.5 INCORPORATION OF REPRESENTATIONS.
Each representation and warranty of the Borrower contained in the
Agreement is true, correct and complete in all material respects on and as of
the Second Amendment Effective Date to the same extent as though made on and as
of the Second Amendment Effective Date; provided, however, that (i) each
reference to the Agreement shall be deemed to be a dual reference to this
Second Amendment and to the Agreement as amended by this Second Amendment and
(ii) each reference to the Closing Date shall be deemed to be a reference to
the Second Amendment Effective Date.
SECTION 4
CONDITIONS TO EFFECTIVENESS
This Second Amendment shall become effective on November 7, 1994;
provided that, on or prior to such date, each of the following conditions
precedent shall be satisfied (such date, the "SECOND AMENDMENT EFFECTIVE
DATE"):
4.1 RECEIPT OF SECOND AMENDMENT.
Agent shall have received a duly executed counterpart of this Second
Amendment from each party hereto.
4.2 RECEIPT OF SECOND AMENDED AND RESTATED NOTES.
The Borrower shall have delivered to each Bank a Second Amended and
Restated Revolving Note in the form of Exhibit A attached hereto, drawn to the
order of such Bank and with appropriate insertions and giving effect to the
amendments to the Agreement contained herein. The Borrower shall also have
delivered to BT Co a Second Amended and Restated Swing Line Note in the form of
Exhibit B attached hereto, drawn to the order of BT Co and with appropriate
insertions and giving effect to the amendments to the Agreement contained
herein.
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4.3 NO OUTSTANDING LOANS.
No Loan shall be outstanding under the Agreement and the Borrower
shall not have delivered a Notice of Borrowing to Agent with respect to any
Loan; provided, that after the Second Amendment Effective Date, the Borrower
may request that Loans be made under the Agreement in accordance with the terms
thereof.
4.4 COMMITMENT COMMISSIONS.
The Borrower shall have paid to the Agent for distribution to each
Original Bank based on its Pro Rata Share (prior to giving effect to the
provision of this Second Amendment), the Commitment Commissions payable on the
Second Amendment Effective Date.
4.5 OFFICER'S CERTIFICATE.
Agent shall have received from the Borrower an Officer's Certificate
of the Borrower dated as of the Second Amendment Effective Date to the effect
that (i) each representation and warranty of the Borrower contained in this
Second Amendment and the Agreement is true, correct and complete in all
material respects on and as of the Second Amendment Effective Date to the same
extent as though made on the Second Amendment Effective Date; (ii) no event
shall have occurred and be continuing or would result from the execution,
delivery or performance of this Second Amendment and after giving effect to
this Second Amendment that constitutes or would constitute an Event of Default
or Unmatured Event of Default; (iii) attached to such Officer's Certificate are
resolutions of the Board of Directors of the Borrower approving and authorizing
the execution, delivery, and performance of this Second Amendment and approving
and authorizing the issuance, delivery and making of payments in respect of the
Second Amended and Restated Notes; (iv) set forth therein is the signature and
incumbency of any officer executing this Second Amendment and the Second
Amended and Restated Notes on behalf of the Borrower; and (v) attached to such
Officer's Certificate are the Certificate of Incorporation and By-laws of the
Borrower as in effect as of the date thereof.
4.6 LEGAL OPINION.
Agent shall have received originally executed copies of the opinion of
Robert N. Landes, Executive Vice President and General Counsel to the Borrower,
dated as of the Second Amendment Effective Date and in substantially the form
of Exhibit C, attached hereto.
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4.7 NO ORDER, ETC.
No order, judgment or decree of any court, arbitrator or governmental
authority shall purport to enjoin or restrain the Borrower from consummating
the transactions contemplated by this Second Amendment.
4.8 FURTHER ASSURANCES.
All corporate and other proceedings taken or to be taken in connection
with the transactions contemplated by this Second Amendment and all documents
incidental thereto shall be reasonably satisfactory in form and substance to
the Banks, Agent and their respective counsel and the Agent, the Banks and such
counsel shall have received all such counterpart originals or certified copies
of such documents as they may reasonably request.
SECTION 5
REPLACEMENT OF CERTAIN BANKS
On and after the Second Amendment Effective Date, each Exiting Bank
shall cease to be a Bank party to the Agreement for any purpose thereof except
that, each Exiting Bank shall continue to be deemed a Bank solely for the
purposes of Section 9.3 of the Agreement and solely with respect to indemnified
liabilities (as such term is defined in Section 9.3 of the Agreement) arising
prior to the Second Amendment Effective Date. On the Second Amendment
Effective Date, the Revolving Note previously issued to each Exiting Bank shall
be deemed to be cancelled, and shall be cancelled by such Bank, and each
Exiting Bank shall deliver to the Borrower its cancelled Revolving Note
previously issued.
SECTION 6
MISCELLANEOUS
6.1 EFFECT OF SECOND AMENDMENT.
Except as specifically provided herein, this Second Amendment does not
in any way waive, amend, modify, affect or impair the terms and conditions of
the Agreement, including, without limitation, any rights or remedies upon the
occurrence of an Unmatured Event of Default or Event of Default thereunder, and
all terms and conditions of the Agreement, including such rights and remedies,
are to remain in full force and effect unless otherwise specifically amended,
waived or changed pursuant hereto.
On and after the Second Amendment Effective Date, each reference in
the Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like
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import referring to the Agreement shall mean and be a reference to the
Agreement as amended by this Second Amendment.
This Second Amendment constitutes the entire agreement among the
parties pertaining to the subject matter hereof and supersedes all prior and
contemporaneous agreements, understandings, representations or other
arrangements, whether express or implied, written or oral, of the parties in
connection therewith except to the extent expressly incorporated or
specifically referred to herein.
6.2 COUNTERPARTS.
This Second Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
6.3 EXPENSES.
Upon receipt of an appropriate supporting invoice, the Borrower hereby
agrees that it shall reimburse Agent in full for all of the actual and
reasonable costs and expenses of the Agent and its counsel incurred in
connection with the negotiation, preparation, execution and delivery of this
Second Amendment and the exhibits hereto and all matters incidental hereto.
6.4 CANCELLATION AND RETURN OF PREVIOUSLY ISSUED NOTES.
Upon the receipt by an Original Bank of its Second Amended and
Restated Revolving Note duly issued by the Borrower, the previously issued
Revolving Note issued to such Original Bank which is being amended and restated
thereby shall be deemed to be cancelled, and shall be cancelled by such
Original Bank and returned by such Original Bank to the Borrower, and all
obligations represented thereby shall continue to be represented by the Second
Amended and Restated Revolving Note issued in replacement thereof. Upon the
receipt by BT Co of the Second Amended and Restated Swing Line Note duly issued
by the Borrower, the Swing Line Note previously issued to BT Co which is being
amended and restated thereby shall be deemed to be cancelled, and shall be
cancelled by BT Co and returned by BT Co to the Borrower, and all obligations
represented thereby shall continue to be represented by the Second Amended and
Restated Swing Line Note issued in replacement thereof.
6.5 GOVERNING LAW.
THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
14
<PAGE> 17
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
15
<PAGE> 18
WITNESS the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
BORROWER:
MCGRAW-HILL, INC.
By: /s/ Frank D. Penglase
-------------------------------
Name: Frank D. Penglase
Title: Senior Vice President &
Treasurer
Notice Address and Payment Office:
McGraw-Hill, Inc.
1221 Avenue of the Americas
New York, New York 10020
Attention: Frank Penglase
(with a copy to the General Counsel)
Telephone No.: (212) 512-6504
Telecopy No.: (212) 512-4078
S-1
<PAGE> 19
BANKS, AGENT AND CO-AGENTS:
BANKERS TRUST COMPANY,
as a Bank and as Agent
By: /s/ Mary Kay Coyle
----------------------
Name: Mary Kay Coyle
Title: Vice President
Notice Address and Payment Office:
Bankers Trust Company
280 Park Avenue
New York, New York 10017
Attention: Gregory Paul
John Hopley
Telephone No.: (212) 250-3823
Telecopy No.: (212) 250-7218
Commitment: $74,666,666.68
Pro Rata Share: 9.33333333500%
S-2
<PAGE> 20
CITIBANK, N.A.,
as a Bank and as Co-Agent
By: /s/ Robert A. Keller
--------------------------------
Name: Robert A. Keller
Title: Assistant Vice President
Notice Address and Payment Office:
Citibank, N.A.
4th Floor - Zone 17
399 Park Avenue
New York, New York 10043
Attention: Robert A. Keller
Telephone No.: (212) 559-4257
Telecopy No.: (212) 593-0054
Commitment: $74,666,666.66
Pro Rata Share: 9.33333333250%
S-3
<PAGE> 21
THE CHASE MANHATTAN BANK, N.A.,
as a Bank and as Co-Agent
By: /s/ Bruce Langenkamp
-----------------------
Name: Bruce Langenkamp
Title: Vice President
Notice Address and Payment Office:
The Chase Manhattan Bank, N.A.
One Chase Manhattan Plaza
New York, New York 10081
Attention: Bruce Langenkamp
Telephone No.: (212) 552-6123
Telecopy No.: (212) 552-0259
Commitment: $74,666,666.66
Pro Rata Share: 9.33333333250%
S-4
<PAGE> 22
BANK OF AMERICA ILLINOIS,
(as successor to Continental Bank)
as a Bank
By: /s/ R. Vernon Howard, Jr.
----------------------------
Name: R. Vernon Howard, Jr.
Title: Authorized Officer
Notice Address:
Bank of America Illinois
231 South LaSalle Street, 9J
Chicago, Illinois 60697
Attention: Novona Dillard
Telephone No.: (312) 828-6148
Telecopy No.: (312) 828-5140
With a Copy to:
Bank of America Illinois
335 Madison Avenue
New York, New York 10017
Attention: Nancy Sun
Telephone No.: (212) 503-8352
Telecopy No.: (212) 503-7173
Payment Office:
Bank of America Illinois
231 South LaSalle Street, 9J
Chicago, Illinois 60697
Telecopy No.: (312) 828-5140
Commitment: $32,000,000.00
Pro Rata Share: 4.00000000000%
S-5
<PAGE> 23
BANK OF MONTREAL,
as a Bank
By: /s/ Yvonne Bos
-------------------------
Name: Yvonne Bos
Title: Managing Director
Notice Address:
Bank of Montreal
16th Floor
430 Park Avenue
New York, New York 10022
Attention: Michael Andres
Telephone No.: (212) 605-1632
Telecopy No.: (212) 605-1648
Payment Office:
Bank of Montreal
115 S. LaSalle Street
Chicago, Illinois 60603
Commitment: $32,000,000.00
Pro Rata Share: 4.00000000000%
S-6
<PAGE> 24
THE BANK OF NEW YORK,
as a Bank
By: /s/ Vincent L. Pacilio
-------------------------
Name: Vincent L. Pacilio
Title: Vice President
Notice Address and Payment Office:
The Bank of New York
16th Floor
One Wall Street
New York, New York 10286
Attention: Vincent L. Pacilio
Telephone No.: (212) 635-8692
Telecopy No.: (212) 635-8593
Commitment: $32,000,000.00
Pro Rata Share: 4.00000000000%
S-7
<PAGE> 25
CHEMICAL BANK,
as a Bank
By: /s/ John C. Coffin
-----------------------
Name: John C. Coffin
Title: Vice President
Notice Address:
Chemical Bank
270 Park Avenue
New York, New York 10017
Attention: Hector Guenther
Telephone No.: (212) 270-9685
Telecopy No.: (212) 270-2056
Payment Office:
Chemical Bank
Loan Services Department
52 Broadway
New York, New York 10015
Attention: Pedro Valetin
Commitment: $32,000,000.00
Pro Rata Share: 4.00000000000%
S-8
<PAGE> 26
THE DAI-ICHI KANGYO BANK, LTD.,
as a Bank
By: /s/ Robert Gallagher
--------------------------------
Name: Robert Gallagher
Title: Assistant Vice President
Notice Address and Payment Office:
The Dai-Ichi Kangyo Bank, Ltd.
Suite 4911
One World Trade Center
New York, New York 10048
Attention: Seiji Imai
Telephone No.: (212) 432-8441
Telecopy No.: (212) 524-0579
Commitment: $32,000,000.00
Pro Rata Share: 4.00000000000%
S-9
<PAGE> 27
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES,
as a Bank
By: /s/ Alain M. Bolea
---------------------
Name: Alain M. Bolea
Title: Director
By: /s/ Bina R. Dabbah
----------------------
Name: Bina R. Dabbah
Title: Vice President
Notice Address and Payment Office:
Deutsche Bank AG New York and/or
Cayman Islands Branches
24th Floor
31 W. 52nd Street
New York, New York 10019
Attention: Allain Bolea
Telephone No.: (212) 474-8250
Telecopy No.: (212) 474-8256
Commitment: $32,000,000.00
Pro Rata Share: 4.00000000000%
S-10
<PAGE> 28
FIRST FIDELITY BANK, NATIONAL
ASSOCIATION
as a Bank
By: /s/ Robert K. Strunk, II
---------------------------
Name: Robert K. Strunk, II
Title: Vice President
Notice Address and Payment Office:
First Fidelity Bank, National
Association
550 Broad Street
B55005
Newark, New Jersey 07102
Attention: Robert K. Strunk, II
Telephone No.: (201) 565-6663
Telecopy No.: (201) 565-6681
Commitment: $32,000,000.00
Pro Rata Share: 4.00000000000%
S-11
<PAGE> 29
THE FIRST NATIONAL BANK OF BOSTON,
as a Bank
By: /s/ Mary Etta Schneider
--------------------------
Name: Mary Etta Schneider
Title: Managing Director
Notice Address and Payment Office:
The First National Bank of Boston
100 Federal Street
Boston, Massachusetts 02110
Attention: Mary Etta Schneider
Keith Wilson
Telephone No.: (617) 434-7217
Telecopy No.: (617) 434-3401
Commitment: $32,000,000.00
Pro Rata Share: 4.00000000000%
S-12
<PAGE> 30
THE FUJI BANK, LIMITED,
NEW YORK BRANCH,
as a Bank
By: /s/ Gina Kearns
--------------------------------
Name: Gina Kearns
Title: Vice President & Manager
Notice Address and Payment Office:
The Fuji Bank, Limited, New York Branch
79th Floor
Two World Trade Center
New York, New York 10048
Attention: Chigusa Tada
Telephone No.: (212) 898-2067
Telecopy No.: (212) 912-0516
Commitment: $32,000,000.00
Pro Rata Share: 4.00000000000%
S-13
<PAGE> 31
MARINE MIDLAND BANK,
MEMBER HSBC GROUP,
as a Bank
By: /s/ Jeffrey Fuglestad
------------------------
Name: Jeffrey Fuglestad
Title: Vice President
Notice Address and Payment Office:
Marine Midland Bank
140 Broadway, 6th Floor
New York, New York 10015
Attention: Jeffrey Fuglestad
Telephone No.: (212) 658-1928
Telecopy No.: (212) 658-6445
Commitment: $32,000,000.00
Pro Rata Share: 4.00000000000%
S-14
<PAGE> 32
MELLON BANK, N.A.,
as a Bank
By: /s/ Mary McManus
-----------------------
Name: Mary McManus
Title: Banking Officer
Notice Address and Payment Office:
Mellon Bank, N.A.
One Mellon Bank Center
Pittsburgh, Pennsylvania 15258-0001
Attention: Mary McManus
Telephone No.: (412) 236-2473
Telecopy No.: (412) 234-6375
Commitment: $32,000,000.00
Pro Rata Share: 4.00000000000%
S-15
<PAGE> 33
THE MITSUBISHI BANK, LIMITED,
as a Bank
By: /s/ Paula Mueller
----------------------
Name: Paula Mueller
Title: Vice President
Notice Address and Payment Office:
The Mitsubishi Bank
225 Liberty Street
Two World Financial Center
New York, New York 10281
Attention: Paula Mueller
Telephone No.: (212) 667-2890
Telecopy No.: (212) 667-3562
Commitment: $32,000,000.00
Pro Rata Share: 4.00000000000%
S-16
<PAGE> 34
NATIONAL WESTMINSTER BANK PLC,
as a Bank
By: /s/ David Apps
----------------------
Name: David Apps
Title: Vice President
Notice Address and Payment Office:
National Westminster Bank PLC
Level 29
175 Water Street
New York, New York 10038
Attention: David Apps
Telephone No.: (212) 602-4221
Telecopy No.: (212) 602-4256
Commitment: $32,000,000.00
Pro Rata Share: 4.00000000000%
S-17
<PAGE> 35
THE NORTHERN TRUST COMPANY,
as a Bank
By: /s/ Stacy O'Daffer
----------------------------------
Name: Stacy O'Daffer
Title: Commercial Banking Officer
Notice Address and Payment Office:
The Northern Trust Company
50 South LaSalle B-11
Chicago, Illinois 60675
Attention: Stacy Chuchro O'Daffer
Telephone No.: (312) 630-0582
Telecopy No.: (312) 444-3508
Commitment: $32,000,000.00
Pro Rata Share: 4.00000000000%
S-18
<PAGE> 36
THE SANWA BANK, LIMITED,
as a Bank
By: /s/ Dominic J. Sorresso
--------------------------
Name: Dominic J. Sorresso
Title: Vice President
Notice Address and Payment Office:
The Sanwa Bank, Limited
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055
Attention: Dominic J. Sorresso
Telephone No.: (212) 339-6194
Telecopy No.: (212) 754-1304
Commitment: $32,000,000.00
Pro Rata Share: 4.00000000000%
S-19
<PAGE> 37
SOCIETE GENERALE,
as a Bank
By: /s/ Carolyn Alves
----------------------
Name: Carolyn Alves
Title: Vice President
Notice Address and Payment Office:
Societe Generale
1221 Avenue of the Americas
New York, New York 10020
Attention: Carolyn Alves
Telephone No.: (212) 278-6884
Telecopy No.: (212) 278-6240
Commitment: $32,000,000.00
Pro Rata Share: 4.00000000000%
S-20
<PAGE> 38
THE TORONTO-DOMINION BANK,
as a Bank
By: /s/ Lisa Allison
-----------------------
Name: Lisa Allison
Title: Mgr. Cr. Admin.
Notice Address:
The Toronto-Dominion Bank
31 West 52nd Street
New York, New York 10019
Attention: Peter Foley
Telephone No.: (212) 468-0710
Telecopy No.: (212) 468-1928
Payment Office:
The Toronto-Dominion Bank
909 Fannin
Houston, Texas 77010
Attention: Warren Finley
Telephone No.: (713) 653-8208
Telecopy No.: (713) 951-9921
Commitment: $32,000,000.00
Pro Rata Share: 4.00000000000%
S-21
<PAGE> 39
YASUDA TRUST AND BANKING CO., LTD.
NEW YORK BRANCH,
as a Bank
By: /s/ Neil T. Chau
----------------------------
Name: Neil T. Chau
Title: First Vice President
Notice Address and Payment Office:
Yasuda Trust and Banking Co., Ltd.
New York Branch
Suite 801
666 Fifth Avenue
New York, New York 10103
Attention: Nicholas D. Pullen
Telephone No.: (212) 373-5720
Telecopy No.: (212) 373-5796
Commitment: $32,000,000.00
Pro Rata Share: 4.00000000000%
S-22
<PAGE> 40
ACKNOWLEDGED AND AGREED:
BANK OF AMERICA NT&SA
as an Exiting Bank
By: /s/ R. Vernon Howard, Jr.
----------------------------
Name: R. Vernon Howard, Jr.
Title: Vice President
S-23
<PAGE> 41
EXHIBIT A
[FORM OF REVOLVING NOTE]
THIS IS AN AMENDMENT AND RESTATEMENT OF A PROMISSORY NOTE
MADE BY BORROWER TO PAYEE DATED NOVEMBER 12, 1991, WHICH
PROMISSORY NOTE WAS PREVIOUSLY AMENDED AND RESTATED
AS OF NOVEMBER 8, 1993
MCGRAW-HILL, INC.
PROMISSORY NOTE
New York, New York
$[1] [2]
FOR VALUE RECEIVED, MCGRAW-HILL, INC., a New York corporation (the
"BORROWER"), promises to pay to the order of [3] (the "PAYEE"), on or
before the Final Maturity Date, the lesser of (x) [4] ($[5]) and (y) the unpaid
principal amount of all advances made by the Payee to the Borrower as
Syndicated Loans under the Credit Agreement referred to below. Capitalized
terms used herein without definition shall have the meanings set forth in the
Credit Agreement referred to below.
The Borrower also promises to pay interest on the unpaid principal
amount hereof from the date hereof until paid in full at the rates and at the
times which shall be determined in accordance with the provisions of the Credit
Agreement dated as of November 12, 1991, as amended by that certain First
Amendment dated as of November 8, 1993 and that certain Second Amendment dated
as of November 7, 1994 (such Credit Agreement, as amended, amended and
restated,
__________________________________
1 Insert amount of Bank's Commitment in numbers.
2 Insert Second Amendment Effective Date.
3 Insert name of Bank in capital letters.
4 Insert amount of Bank's Commitment in words.
5 Insert amount of Bank's Commitment in numbers.
<PAGE> 42
supplemented or otherwise modified from time to time, being the "CREDIT
AGREEMENT") among the Borrower, the Banks listed therein and Bankers Trust
Company, as Agent.
This Note is one of the Borrower's "Revolving Notes" and is issued
pursuant to and entitled to the benefits of the Credit Agreement to which
reference is hereby made for a more complete statement of the terms and
conditions under which the Syndicated Loans evidenced hereby were made and are
to be repaid.
All payments of principal and interest in respect of this Note shall
be made in lawful money of the United States of America in same day funds to
Bankers Trust Company, as Agent, at its office located at One Bankers Trust
Plaza, New York, New York, or at such other place as shall be designated in
writing for such purpose in accordance with the terms of the Credit Agreement.
Until notified in writing of the transfer of this Note, the Borrower and the
Agent shall be entitled to deem the Payee or such person who has been so
identified by the transferor in writing to the Borrower and the Agent as the
holder of this Note, as the owner and holder of this Note. Each of the Payee
and any subsequent holder of this Note agrees, by its acceptance hereof, that
before disposing of this Note or any part thereof it will make a notation on
the Schedule attached hereto of all principal payments previously made
hereunder and of the date to which interest hereon has been paid; provided,
however, that the failure to make a notation of any payment made on this Note
shall not limit or otherwise affect the obligation of the Borrower hereunder
with respect to payments of principal or interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
the payment of interest on this Note; provided, however, that in the event that
the day on which payment relating to a Eurodollar Rate Loan is due is not a
Business Day but is a day of the month after which no further Business Day
occurs in such month, then the due date thereof shall be the next preceding
Business Day.
This Note is subject to mandatory prepayment as provided in Section
2.8C(i) of the Credit Agreement and prepayment at the option of the Borrower as
provided in Section 2.8B(i) of the Credit Agreement.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note, together with all accrued but unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
<PAGE> 43
The Borrower promises to pay all costs and expenses, including
attorneys' fees, all as provided in Section 9.2 of the Credit Agreement,
incurred in the collection and enforcement of this Note. The Borrower hereby
consents to renewals and extensions of time at or after the maturity hereof,
without notice, and hereby waives diligence, presentment, protest, demand and
notice of every kind and, to the full extent permitted by law, the right to
plead any statute of limitations as a defense to any demand hereunder.
The Credit Agreement and this Note shall be governed by, and shall be
construed and enforced in accordance with, the laws of the State of New York
without regard to the principles of conflict of laws.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
and delivered by its duly authorized officer, as of the day and year and at the
place written above.
MCGRAW-HILL, INC.
By:
----------------------
Name:
Title:
<PAGE> 44
REVOLVING LOANS AND PRINCIPAL PAYMENTS SCHEDULE
<TABLE>
<S> <C> <C> <C> <C> <C>
Outstanding
Type of Amount of Amount of Principal
Loan Made Loan Made Principal Paid Balance Notation
Date This Date This Date This Date This Date Made By
---- --------- --------- -------------- --------------- ---------
</TABLE>
<PAGE> 45
EXHIBIT B
[FORM OF SWING LINE NOTE]
THIS IS AN AMENDMENT AND RESTATEMENT OF A PROMISSORY NOTE
MADE BY BORROWER TO PAYEE DATED NOVEMBER 12, 1991, WHICH
PROMISSORY NOTE WAS PREVIOUSLY AMENDED AND RESTATED
AS OF NOVEMBER 8, 1993
MCGRAW-HILL, INC.
SWING LINE NOTE
New York, New York
$75,000,000 [1]
FOR VALUE RECEIVED, MCGRAW-HILL, INC., a New York corporation (the
"BORROWER"), promises to pay to the order of BANKERS TRUST COMPANY (the
"PAYEE"), on or before the Final Maturity Date, the lesser of (x)
SEVENTY-FIVE MILLION DOLLARS ($75,000,000) and (y) the unpaid principal amount
of all advances made by the Payee to the Borrower as Swing Line Loans under the
Credit Agreement referred to below. Capitalized terms used herein without
definition shall have the meanings set forth in the Credit Agreement referred
to below.
The Borrower also promises to pay interest on the unpaid principal
amount hereof from the date hereof until paid in full at the rates and at the
times which shall be determined in accordance with the provisions of the Credit
Agreement dated as of November 12, 1991, as amended by that certain First
Amendment dated as of November 8, 1993 and that certain Second Amendment dated
as of November 7, 1994 (such Credit Agreement, as amended, amended and
restated, supplemented or otherwise modified from time to time, being the
"CREDIT AGREEMENT") among the Borrower, the Banks listed therein and Bankers
Trust Company, as Agent.
This Note is the Borrower's "Swing Line Note" and is issued pursuant
to and entitled to the benefits of the Credit Agreement to which reference is
hereby made for a more complete statement of the terms and conditions under
which the Swing Line Loans evidenced hereby were made and are to be repaid.
- - -----------------------------------------
1 Insert Second Amendment Effective Date.
1
<PAGE> 46
All payments of principal and interest in respect of this Note shall
be made in lawful money of the United States of America in same day funds to
Bankers Trust Company, as Agent, at its office located at One Bankers Trust
Plaza, New York, New York, or at such other place as shall be designated in
writing for such purpose in accordance with the terms of the Credit Agreement.
Until notified in writing of the transfer of this Note, the Borrower and the
Agent shall be entitled to deem the Payee or such person who has been so
identified by the transferor in writing to the Borrower and the Agent as the
holder of this Note, as the owner and holder of this Note. Each of the Payee
and any subsequent holder of this Note agrees, by its acceptance hereof, that
before disposing of this Note or any part thereof it will make a notation on
the Schedule attached hereto of all principal payments previously made
hereunder and of the date to which interest hereon has been paid; provided,
however, that the failure to make a notation of any payment made on this Note
shall not limit or otherwise affect the obligation of the Borrower hereunder
with respect to payments of principal or interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in Section
2.8C(ii) of the Credit Agreement and prepayment at the option of the Borrower
as provided in Section 2.8B(i) of the Credit Agreement.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note, together with all accrued but unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or of the Credit Agreement shall alter or impair the obligation of the
Borrower, which is absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the
currency herein prescribed.
The Borrower promises to pay all costs and expenses, including
attorneys' fees, all as provided in Section 9.2 of the Credit Agreement,
incurred in the collection and enforcement of this Note. The Borrower hereby
consents to renewals and extensions of time at or after the maturity hereof,
without notice, and hereby waives diligence, presentment, protest, demand and
notice of every kind and, to the full extent permitted by law, the right to
plead any statute of limitations as a defense to any demand hereunder.
2
<PAGE> 47
The Credit Agreement and this Note shall be governed by, and shall be
construed and enforced in accordance with, the laws of the State of New York
without regard to the principles of conflict of laws.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
and delivered by its duly authorized officer, as of the day and year and at the
place written above.
MCGRAW-HILL, INC.
By:
------------------------
Name:
Title:
3
<PAGE> 48
TRANSACTIONS ON SWING LINE NOTE
<TABLE>
<S> <C> <C> <C> <C> <C>
Outstanding
Type of Amount of Amount of Principal
Loan Made Loan Made Principal Paid Balance Notation
Date This Date This Date This Date This Date Made By
---- --------- --------- -------------- --------------- ---------
</TABLE>
4
<PAGE> 49
EXHIBIT C
[LETTERHEAD OF MCGRAW HILL, INC.]
[Date]
To each of the Banks listed
on Schedule I hereto:
I am the General Counsel of McGraw-Hill, Inc., a New York corporation
(the "BORROWER"). This opinion is being furnished to you pursuant to Section
4.6 of that certain Second Amendment to the Credit Agreement (the "SECOND
AMENDMENT") dated as of November 7, 1994, among the Borrower, each of the
Banks (the "BANKS") listed therein and Bankers Trust Company, as Agent (the
"Agent"). The undersigned has prepared this opinion and delivered it to the
Banks for their benefit at the request of the Borrower. Unless otherwise
defined herein, the meanings of the capitalized terms used in this opinion
shall be the same as those in the Second Amendment.
I advise you that, in my opinion:
1. The Borrower is and each Material Subsidiary of the Borrower is
a corporation duly organized, validly existing and in corporate good standing
under the laws of its state of incorporation and has all requisite corporate
power and authority to own, operate and lease its properties and to carry on
its business as now conducted and proposed to be conducted. The Borrower is in
good standing in each jurisdiction in which the nature of the business
conducted or the properties or assets owned or leased by it makes such
qualification reasonably necessary and where the failure to qualify would have
a Material Adverse Effect.
2. The Borrower has all requisite corporate power and authority to
execute and deliver the Second Amendment and to carry out the transactions
contemplated thereby and to issue, deliver and make payments in respect of the
Second Amended and Restated Notes. The execution, delivery and performance of
the Second Amendment have been duly authorized by all necessary corporate
action by the Borrower and the issuance, delivery and making of payments in
respect of the Second Amended and Restated Notes have been duly authorized by
all necessary corporate action by the Borrower.
<PAGE> 50
3. The execution, delivery and performance by the Borrower of the
Second Amendment, the issuance, delivery and making of payments in respect of
the Second Amended and Restated Notes by the Borrower and the consummation of
any transaction contemplated by the Second Amendment do not and will not (i)
violate any provision of law applicable to the Borrower, or any of its Material
Subsidiaries, the Certificate of Incorporation or By-laws of the Borrower or
any of its Material Subsidiaries, or any order, judgment or decree of any court
or other agency of government binding on the Borrower or any of its Material
Subsidiaries, (ii) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any contractual obligation of
the Borrower or any of its Material Subsidiaries, (iii) result in or require
the creation or imposition of any Lien upon any of the material properties or
assets of the Borrower or any of its Material Subsidiaries or (iv) require any
approval of stockholders or any approval or consent of any Person under any
contractual obligation of the Borrower or any of its Material Subsidiaries
other than such approvals or consents which have been obtained or will be
obtained on or before the Second Amendment Effective Date; except for any
violation, conflict, default, breach, Lien or lack of approval the existence of
which would not have a Material Adverse Effect.
4. The Second Amendment and the Second Amended and Restated Notes
each constitute a legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms except (i) that
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization and other similar laws now or hereafter in effect relating to or
affecting creditors' rights and remedies generally, and (ii) that the remedy of
specific performance and injunctive and other forms of equitable relief are
subject to certain equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought (regardless of whether enforcement
is sought in a proceeding at law or in equity). The Borrower has duly executed
and delivered the Second Amendment and the Second Amended and Restated Notes.
5. The execution, delivery and performance by the Borrower of the
Second Amendment and the issuance, delivery and making of payments in respect
of the Second Amended and Restated Notes by the Borrower do not and will not
require any registration with, consent or approval of, or notice to, or other
action to, with or by, any federal, state or other governmental authority or
regulatory body other than any such registration, consent, approval, notice or
other action which has been duly made, given or taken.
6. The Borrower 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.
7. The Borrower is not subject to regulation under any federal or
state statute or regulation limiting its ability to incur indebtedness for
money borrowed
<PAGE> 51
as contemplated by the Second Amendment or by the Second Amended and Restated
Notes.
8. The Borrower is not engaged, directly or indirectly,
principally, or as one of its important activities, in the business of
extending, or arranging for the extension of, credit for the purpose of
purchasing or carrying any margin stock, within the meaning of Regulation G, T,
U or X of the Board of Governors of the Federal Reserve System.
I am admitted to practice law in the State of New York. No opinion is
expressed herein with respect to any laws other than those of the State of New
York and the United States.
Very truly yours,
<PAGE> 52
SCHEDULE I
Bankers Trust Company
Bank of America Illinois
Bank of Montreal
The Bank of New York
The Chase Manhattan Bank, N.A.
Chemical Bank
Citibank, N.A.
The Dai-Ichi Kangyo Bank, Ltd.
Deutsche Bank AG New York and/or Cayman Islands Branches
First Fidelity Bank, National Association
The First National Bank of Boston
The Fuji Bank, Limited, New York Branch
Marine Midland Bank, member HSBC group
Mellon Bank, N.A.
The Mitsubishi Bank, Limited
National Westminster Bank PLC
The Northern Trust Company
The Sanwa Bank, Limited
Societe Generale
The Toronto-Dominion Bank
Yasuda Trust and Banking Co., Ltd. New York Branch
