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Exhibit 10.2
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THE McGRAW-HILL COMPANIES, INC.
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$625,000,000
FIVE-YEAR CREDIT AGREEMENT
dated as of
August 15, 2000
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CHASE SECURITIES INC., as Lead Arranger and Book Manager
THE CHASE MANHATTAN BANK,
as Administrative Agent
BANK OF AMERICA, N.A.,
as Co-Syndication Agent
CITIBANK, N.A.,
as Co-Syndication Agent
DEUTSCHE BANK AG NEW YORK BRANCH,
as Co-Syndication Agent
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TABLE OF CONTENTS
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ARTICLE I
Definitions................................ 1
SECTION 1.01. Defined Terms................................................... 1
SECTION 1.02. Classification of Loans and Borrowings.......................... 16
SECTION 1.03. Terms Generally................................................. 16
SECTION 1.04. Accounting Terms; GAAP.......................................... 17
ARTICLE II
The Credits................................ 17
SECTION 2.01. Commitments..................................................... 17
SECTION 2.02. Loans and Borrowings............................................ 17
SECTION 2.03. Requests for Revolving Borrowings............................... 18
SECTION 2.04. Competitive Bid Procedure....................................... 19
SECTION 2.05. Swingline Loans................................................. 22
SECTION 2.06. Funding of Borrowings........................................... 23
SECTION 2.07. Interest Elections.............................................. 24
SECTION 2.08. Termination and Reduction of Commitments........................ 25
SECTION 2.09. Repayment of Loans; Evidence of Debt............................ 26
SECTION 2.10. Prepayment of Loans............................................. 27
SECTION 2.11. Fees............................................................ 27
SECTION 2.12. Interest........................................................ 28
SECTION 2.13. Alternate Rate of Interest...................................... 29
SECTION 2.14. Increased Costs................................................. 30
SECTION 2.15. Break Funding Payments.......................................... 31
SECTION 2.16. Taxes........................................................... 32
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs..... 33
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.................. 34
SECTION 2.19. Proceeds........................................................ 35
ARTICLE III
Representations and Warranties....................... 35
SECTION 3.01. Organization, Powers and Good Standing.......................... 35
SECTION 3.02. Authorization of Borrowing, etc................................. 36
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SECTION 3.03. Financial Condition........................................ 37
SECTION 3.04. No Adverse Material Change................................. 37
SECTION 3.05. Litigation................................................. 37
SECTION 3.06. Payment of Taxes........................................... 37
SECTION 3.07. Governmental Regulation.................................... 38
SECTION 3.08. Securities Activities...................................... 38
SECTION 3.09. ERISA...................................................... 38
ARTICLE IV
Conditions............................ 38
SECTION 4.01. Effective Date............................................. 38
SECTION 4.02. Each Credit Event.......................................... 39
ARTICLE V
Affirmative Covenants...................... 40
SECTION 5.01. Financial Statements and Other Reports..................... 40
SECTION 5.02. Corporate Existence........................................ 42
SECTION 5.03. Payment of Taxes........................................... 42
SECTION 5.04. Maintenance of Properties; Insurance....................... 43
SECTION 5.05. Compliance with Laws....................................... 43
SECTION 5.06. Notices of ERISA Event..................................... 43
ARTICLE VI
Negative Contents......................... 43
SECTION 6.01. Fundamental Changes........................................ 43
SECTION 6.02. Liens...................................................... 44
SECTION 6.03. Financial Covenants........................................ 44
SECTION 6.04. Use of Proceeds............................................ 44
ARTICLE VII
Events of Default..................... 45
SECTION 7.01. Failure to Make Payments When Due.......................... 45
SECTION 7.02. Default in Other Agreements................................ 45
SECTION 7.03. Breach of Certain Covenants................................ 46
SECTION 7.04. Breach of Warranty......................................... 46
SECTION 7.05. Other Defaults Under Agreement............................. 46
SECTION 7.06. Change In Control.......................................... 46
SECTION 7.07. Involuntary Bankruptcy; Appointment of Receiver, etc....... 46
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SECTION 7.08. Voluntary Bankruptcy; Appointment of Receiver, etc......... 47
SECTION 7.09. Judgments and Attachments.................................. 47
SECTION 7.10. Involuntary Dissolution.................................... 48
SECTION 7.11. ERISA Event................................................ 48
ARTICLE VIII
The Administrative Agent................... 48
ARTICLE IX
Miscellaneous.......................... 51
SECTION 9.01. Notices..................................................... 51
SECTION 9.02. Waivers; Amendments......................................... 51
SECTION 9.03. Expenses; Indemnity; Damage Waiver.......................... 52
SECTION 9.04. Successors and Assigns...................................... 54
SECTION 9.05. Survival.................................................... 56
SECTION 9.06. Counterparts; Integration; Effectiveness.................... 56
SECTION 9.07. Severability................................................ 57
SECTION 9.08. Right of Setoff............................................. 57
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.. 57
SECTION 9.10. Waiver of Jury Trial........................................ 58
SECTION 9.11. Headings.................................................... 58
SECTION 9.12. Confidentiality............................................. 59
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SCHEDULES:
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Schedule 2.01 -- Commitments
Schedule 3.01 -- Material Subsidiaries
Schedule 3.05 -- Material Litigation
Schedule 6.02 -- Existing Liens
EXHIBITS:
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Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Opinion of General Counsel of Borrower
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FIVE-YEAR CREDIT AGREEMENT dated as of August 15, 2000, among THE
McGRAW-HILL COMPANIES, INC. (the "Borrower"), the several banks and other
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financial institutions from time to time parties hereto (the "Lenders") and THE
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CHASE MANHATTAN BANK ("Chase"), as administrative agent (in such capacity, the
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"Administrative Agent").
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The parties hereto hereby agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms. As used in this Agreement, the
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following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
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whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
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as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
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in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
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that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agreement" means this Credit Agreement, as amended, supplemented or
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otherwise modified from time to time.
"Alternate Base Rate" means, for any day, a rate per annum equal to
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the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
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2
"Applicable Percentage" means, with respect to any Lender, the
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percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any Eurodollar
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Revolving Loan, or with respect to the facility fees payable hereunder, as the
case may be, the applicable rate per annum set forth below under the caption
"Eurodollar Spread" or "Facility Fee Rate", as the case may be, based upon the
ratings by Moody's and Fitch, respectively, applicable on such date to the Index
Debt:
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Eurodollar Facility Fee
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Index Debt Ratings: Spread Rate
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Category 1: * AA-/Aa3 0.120% 0.060%
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Category 2: * A/A2 0.130% 0.070%
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Category 3: * A-/A3 0.145% 0.080%
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Category 4: * BBB+/Baa1 0.185% 0.090%
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Category 5: ** BBB/Baa2 0.230% 0.120%
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* more than or equal to ** less than or equal to
For purposes of the foregoing, (i) if either Moody's or Fitch shall
not have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this definition), then such
rating agency shall be deemed to have established a rating in Category 5; (ii)
if the ratings established or deemed to have been established by Moody's and
Fitch for the Index Debt shall fall within different Categories, the Applicable
Rate shall be based on the higher of the two ratings unless one of the two
ratings is two or more Categories lower than the other, in which case the
Applicable Rate shall be determined by reference to the Category next below that
of the higher of the two ratings; and (iii) if the ratings established or deemed
to have been established by Moody's and Fitch for the Index Debt shall be
changed (other than as a result of a change in the rating system of Moody's or
Fitch), such change shall be effective as of the date on which it is first
announced by the applicable rating agency. Each change in the Applicable Rate
shall apply during the period commencing on the effective date of such change
and ending on the date immediately preceding the effective date of the next such
change. If the rating system of Moody's or Fitch shall change, or if either
such rating agency shall cease to be in the business of rating corporate debt
obligations, the Borrower and the Lenders shall negotiate in good faith to amend
this definition to reflect such changed rating system or the unavailability of
ratings from such rating agency and, pending the effectiveness of any such
amendment, the Applicable Rate shall be determined by reference to the rating
most recently in effect prior to such change or cessation.
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"Assessment Rate" means, for any day, the annual assessment rate in
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effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "A" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a result of
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any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and acceptance entered
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into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
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Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD Rate
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multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve System of
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the United States of America.
"BofA" means Bank of America, N.A.
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"Borrower" means The McGraw-Hill Companies, Inc., a New York
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corporation.
"Borrowing" means (a) Revolving Loans of the same Type, made,
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converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, (b) a Competitive Loan or group
of Competitive Loans of the same Type made on the same date and as to which a
single Interest Period is in effect or (c) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Revolving
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Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
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day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
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the term
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4
"Business Day" shall also exclude any day on which banks are not open
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for dealings in dollar deposits in the London interbank market.
"Capitalized Lease" means any lease which is or should be capitalized
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on the balance sheet of the lessee in accordance with GAAP existing on the date
hereof and Statement No. 13 of the Financial Accounting Standards Board.
"Capitalized Lease Obligations" means the amount of the liability
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reflecting the aggregate discounted amount of future payments under all
Capitalized Leases calculated in accordance with GAAP existing on the date
hereof and Statement No. 13 of the Financial Accounting Standards Board.
"Change in Law" means (a) the adoption of any law, rule or regulation
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after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or, for
purposes of Section 2.14(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Citibank" means Citibank, N.A.
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"Class", when used in reference to any Loan or Borrowing, refers to
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whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Competitive Loans or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time
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to time.
"Commitment" means, with respect to each Lender, the commitment of
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such Lender to make Revolving Loans and to acquire participations in Swingline
Loans hereunder, expressed as an amount representing the maximum aggregate
amount of such Lender's Revolving Credit Exposure hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Commitment, as applicable.
"Competitive Bid" means an offer by a Lender to make a Competitive
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Loan in accordance with Section 2.04.
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"Competitive Bid Rate" means, with respect to any Competitive Bid, the
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Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
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Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
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"Compliance Certificate" has the meaning assigned to that term in
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Section 5.01(b)(i) hereof.
"Consolidated Cash Flow" of the Borrower and the Subsidiaries for any
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period (the "Determination Period") means the sum of (i) Consolidated Net Income
for the Determination Period, plus (ii) all amounts deducted in the
determination of such Consolidated Net Income in respect of (a) depreciation and
amortization (including without limitation amortization of assets held under
Capitalized Leases), (b) Consolidated Interest Expense, (c) provisions for taxes
based on or measured by income; provided, however, that (A) if during the
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Determination Period the Borrower disposes of any asset, the sum of (x) the net
income (loss) produced by such asset, before extraordinary items, during the
portion of the Determination Period prior to the date on which such asset was
disposed of, plus (y) all amounts deducted in determining such net income (loss)
for such period in respect of depreciation and amortization (including without
limitation amortization of assets held under Capitalized Leases), interest on
Indebtedness, and provisions for taxes based on or measured by income shall be
excluded on a pro forma adjusted and consolidated basis in Consolidated Cash
Flow for the Determination Period (to the extent they would otherwise have been
included thereto), and (B) if during the Determination Period the Borrower makes
an investment in any asset, the sum of (x) the net income (loss) produced by
such asset, before extraordinary items, during the portion of the Determination
Period prior to the date on which such investment in such asset was made, plus
(y) all amounts deducted in determining such net income (loss) for such period
in respect of depreciation and amortization (including, without limitation,
amortization of assets held under Capitalized Leases), interest on Indebtedness,
and provisions for taxes based on or measured by income shall be included on a
pro forma adjusted and consolidated basis in Consolidated Cash Flow for the
Determination Period (to the extent they would have otherwise been excluded
therefrom); provided further, however, Consolidated Cash Flow for any
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Determination Period shall be reduced by an amount equal to that amount
comprising consolidated capital expenditures associated with the book publishing
business during such Determination Period.
"Consolidated Interest Expense" means, for any period, the interest
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expense of the Borrower and its Subsidiaries determined on a consolidated basis
in conformity with GAAP existing on the date hereof including, without
limitation, (i) the amortization of debt discount, (ii)
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6
the amortization of all fees payable in connection with the incurrence of
Indebtedness to the extent included in interest expense and (iii) the portion of
any obligation with respect to a Capitalized Lease allocable to interest
expense.
"Consolidated Net Income" for any period means the net income (or
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loss) of the Borrower and its Subsidiaries for such period before extraordinary
items, determined in accordance with GAAP existing on the date hereof on a
consolidated basis, after eliminating all intercompany items, provided that
there shall be excluded (i) income (or loss) of any Person (other than a
consolidated Subsidiary of such Person) in which any other Person (other than
such Person or any of its consolidated Subsidiaries) has a joint interest,
except to the extent of the amount of dividends or other distributions actually
paid to such Person or any of its consolidated Subsidiaries by such other Person
during such Period, (ii) the income (or loss) of any Person accrued prior to the
date it becomes a consolidated Subsidiary of such Person or is merged into or
consolidated with such Person or any of its consolidated Subsidiaries, (iii) the
income of any consolidated Subsidiary of such Person to the extent that the
declaration or payment of dividends or similar distributions by that
consolidated Subsidiary of the income is not at the time permitted, (iv) any
after-tax gains (but not pre-tax losses) attributable to sales of assets out of
the ordinary course of business and any after-tax gains on pension reversions
received by such Person and its consolidated Subsidiaries and (v) any income (or
loss) attributable to any lease of property (whether real, personal or mixed)
under which the Borrower or any of its Subsidiaries is the lessor; provided,
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however, there shall be excluded from any calculation pursuant to any of clauses
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(ii)-(iv) any income or loss attributable to assets purchased or sold, as the
case may be, having an individual or aggregate (for any consecutive twelve month
period) fair market value of less than $50,000,000.
"Control" means the possession, directly or indirectly, of the power
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to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
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"Co-Syndication Agent" means BofA, Citibank and Deutsche Bank.
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"Default" means any event or condition which constitutes an Event of
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Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Determination Date" means, as used in connection with any
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certificate, report or calculation delivered hereunder, the date (which shall be
specified in such certificate, report or calculation) as of which the
determinations set forth in such certificate, report or calculation are made.
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"Deutsche Bank" means Deutsche Bank AG New York Branch.
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"dollars" or "$" refers to lawful money of the United States of
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America.
"Effective Date" means the date on which the conditions specified in
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Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means federal, state, local and foreign laws or
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regulations, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder relating to pollution or protection
of the environment, including, without limitation, laws relating to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
environment (including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or industrial,
toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
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incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
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4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan pursuant to Section 4041(c)
or 4042 of ERISA; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any Withdrawal Liability or any liability with respect to the
withdrawal of such Person from any Plan; or (g) the receipt by the Borrower or
any ERISA Affiliate of any
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8
notice from any Multiemployer Plan to which the Borrower or any ERISA Affiliate
has an obligation to contribute setting forth a determination that the Borrower
or any ERISA Affiliate has incurred liability as a result of the insolvency or
reorganization of such Multiemployer Plan, within the meaning of Title IV of
ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
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to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
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VII.
"Exchange Act" means the Securities Exchange Act of 1934, as from time
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to time amended, and any successor statutes.
"Excluded Taxes" means, with respect to the Administrative Agent, any
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Lender or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States of America, or any state or
local government or taxing authority in the United States of America, (b) any
branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which the Borrower is located and (c) in
the case of a Foreign Lender (other than an assignee pursuant to a request by
the Borrower under Section 2.18(b)), any withholding tax that is imposed on
amounts payable to such Foreign Lender at the time such Foreign Lender becomes a
party to this Agreement or is attributable to such Foreign Lender's failure or
inability to comply with Section 2.16(e), except to the extent that such
Foreign Lender's assignor (if any) was entitled, at the time of assignment, to
receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 2.16(a).
"Existing Facility" means the $800,000,000 Credit Agreement, dated as
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of February 13, 1997, among the Borrower, the lenders parties thereto and Chase,
as administrative agent.
"Federal Funds Effective Rate" means, for any day, the weighted
----------------------------
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
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9
"Fiscal Quarter" means a quarterly period beginning on the first day
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of January, April, July and October in each Fiscal Year.
"Fiscal Year" means an annual period beginning on January 1 in each
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year and ending on December 31 of such year.
"Fitch" means Fitch IBCA, Inc.
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"Fixed Rate" means, with respect to any Competitive Loan (other than a
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Eurodollar Competitive Loan), the fixed rate of interest per annum specified by
the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
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Rate.
"Foreign Lender" means any Lender that is organized under the laws of
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a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the United
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States of America in effect from time to time except as specifically noted.
"Governmental Authority" means the government of the United States of
----------------------
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" means, with respect to any Person, (i) any guarantee,
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reimbursement agreement or similar contingent obligation made by such Person in
respect of any Indebtedness of any other Person, (ii) any other arrangement
whereby credit is extended to any other Person on the basis of any promise or
undertaking of such Person, (a) to pay the Indebtedness of such other Person,
(b) to purchase an obligation owed by such other Person, (c) to purchase or
lease assets under circumstances that would enable such other Person to
discharge such credit of its obligations or (d) to maintain the capital, working
capital, solvency or general financial condition of such other Person, in each
case whether or not such arrangement is disclosed in the balance sheet of such
other Person or is referred to in a footnote thereto, and (iii) any liability,
(other than Indebtedness which is recourse to a Subsidiary of the Borrower, the
only asset of which is its interest in the partnership of which the Subsidiary
is the general partner, and which Indebtedness is non-recourse to the Borrower)
as a general partner of a partnership in respect of Indebtedness of such
partnership; provided, however, that the
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10
term Guarantee shall not include (1) endorsements for collection or deposit in
the ordinary course of business or (2) obligations of the Borrower and its
Subsidiaries which would constitute Guarantees solely by virtue of the
continuing liability of any such Person which has sold assets subject to
liabilities for liabilities which were assumed by another Person acquiring the
assets which were sold, unless such liability is required to be carried on the
balance sheet of the Borrower and its Subsidiaries in accordance with GAAP. The
amount of any Guarantee and the amount of Indebtedness resulting from such
Guarantee shall be the amount which would have to be carried on the balance
sheet of the guarantor in respect of such Guarantee in accordance with GAAP.
"Indebtedness" means, with respect to any Person, all obligations, for
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the repayment of borrowed money, which in accordance with GAAP in effect on the
date hereof should be classified upon such Person's balance sheet as
liabilities, but in any event including (i) liabilities for the repayment of
borrowed money to the extent secured by any Lien existing on property owned or
acquired by such Person or a Subsidiary thereof, whether or not the liability
secured thereby shall have been assumed by such Person and (ii) all Guarantees
of such Person.
"Indebtedness to Cash Flow Ratio" means the ratio of (i) Indebtedness
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of the Borrower at the Determination Date to (ii) the Consolidated Cash Flow for
the four consecutive Fiscal Quarters ending immediately prior to the
Determination Date.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
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"Independent Public Accountant" means any of the firms of public
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accountants (or their survivors in any merger therewith) currently referred to
as the "Big Six" or any other firm of public accountants of nationally
recognized stature which is (i) independent (as such term is defined in the
rules and regulations promulgated by the Securities and Exchange Commission
under the Exchange Act) from the Person the financial statements of which are
being reported on, (ii) selected by such Person and (iii) reasonably acceptable
to the Required Lenders.
"Index Debt" means senior, unsecured, long-term indebtedness for
----------
borrowed money of the Borrower that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Interest Election Request" means a request by the Borrower to convert
-------------------------
or continue a Revolving Borrowing in accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan (other
---------------------
than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which
<PAGE>
11
such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest
Period of more than three months' duration, each day prior to the last day of
such Interest Period that occurs at intervals of three months' duration after
the first day of such Interest Period, (c) with respect to any Fixed Rate Loan,
the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Fixed Rate Borrowing with an Interest
Period of more than 90 days' duration (unless otherwise specified in the
applicable Competitive Bid Request), each day prior to the last day of such
Interest Period that occurs at intervals of 90 days' duration after the first
day of such Interest Period, and any other dates that are specified in the
applicable Competitive Bid Request as Interest Payment Dates with respect to
such Borrowing and (d) with respect to any Swingline Loan, the day that such
Loan is required to be repaid.
"Interest Period" means (a) with respect to any Eurodollar Borrowing,
---------------
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months (or, with the consent of each Lender, nine or twelve months)
thereafter, as the Borrower may elect, (b) with respect to any Fixed Rate
Borrowing, the period (which shall not be less than 7 days or more than 360
days) commencing on the date of such Borrowing and ending on the date specified
in the applicable Competitive Bid Request; provided, that (i) if any Interest
--------
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless, in the case of a
Eurodollar Borrowing only, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (ii) any Interest Period pertaining to a Eurodollar
Borrowing that commences on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the last calendar
month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date of a
Borrowing initially shall be the date on which such Borrowing is made and, in
the case of a Revolving Borrowing, thereafter shall be the effective date of the
most recent conversion or continuation of such Borrowing.
"Lenders" means the Persons listed on Schedule 2.01 and any other
-------
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
---------
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest
<PAGE>
12
Period, as the rate for dollar deposits with a maturity comparable to such
Interest Period. In the event that such rate is not available at such time for
any reason, then the "LIBO Rate" with respect to such Eurodollar Borrowing for
---------
such Interest Period shall be the rate at which dollar deposits of $5,000,000
and for a maturity comparable to such Interest Period are offered by the
principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"Lien" means any mortgage, pledge, security interest, encumbrance,
----
lien or charge of any kind (including, without limitation, any conditional sale
or other title retention agreement or lease in the nature thereof) or any sale
of receivables with recourse against the seller.
"Loans" means the loans made by the Lenders to the Borrower pursuant
-----
to this Agreement.
"Margin" means, with respect to any Competitive Loan bearing interest
------
at a rate based on the LIBO Rate, the marginal rate of interest, if any, to be
added to or subtracted from the LIBO Rate to determine the rate of interest
applicable to such Loan, as specified by the Lender making such Loan in its
related Competitive Bid.
"Margin Stock" has the meaning assigned to that term in Regulation U
------------
of the Board as in effect from time to time.
"Material Adverse Effect" means a material adverse effect on the
-----------------------
business, operations, properties, assets or financial condition of the Borrower
and its Subsidiaries, taken as a whole.
"Material Subsidiary" means each Subsidiary that is a "significant
-------------------
subsidiary" as defined in Regulation (S) 230.405 promulgated pursuant to the
Securities Act, as such Regulation is in effect on the date hereof.
"Maturity Date" means August 15, 2005.
-------------
"Moody's" means Moody's Investors Service, Inc.
-------
"Multiemployer Plan" means a multiemployer plan as defined in Section
------------------
4001(a)(3) of ERISA.
"Notes" means the Revolving Notes and the Swingline Note.
-----
<PAGE>
13
"Officer's Certificate" means, as applied to any corporation, a
---------------------
certificate executed on behalf of such corporation by its Chairman of the Board
(if an officer), its President, its Chief Financial Officer or its Treasurer.
"Other Taxes" means 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.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA and any successor entity performing similar functions.
"Plan" means any employee pension benefit plan (other than a
----
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Permitted Liens" means:
---------------
(a) Liens for taxes, assessments or governmental charges or levies
(including any Lien imposed by ERISA arising out of an ERISA Event), either not
yet delinquent or so long as the amount, applicability or validity of the same
is being contested in good faith provided that any proceedings commenced for the
foreclosure on such Liens have been duly suspended and adequate reserves, if
any, have been established therefor in accordance with GAAP;
(b) Statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law incurred in the ordinary
course of business for sums not delinquent for a period of more than 45 days or
being contested in good faith, if such reserve or other appropriate provision,
if any, as shall be required by GAAP, shall have been made therefor;
(c) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders,
statutory obligations, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money);
(d) Any attachment or judgment Lien unless the attachment or judgment
it secures shall remain undischarged and execution thereof shall remain unstayed
pending appeal for a period of 60 days;
<PAGE>
14
(e) Easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the business of
the Borrower or any of its Subsidiaries;
(f) Any interest or title of a lessor under any lease; and
(g) Liens arising from equipment leases entered into in the ordinary
course of business.
"Person" means any natural person, corporation, limited liability
------
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Prime Rate" means the rate of interest per annum publicly announced
----------
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Register" has the meaning set forth in Section 9.04.
--------
"Related Parties" means, with respect to any specified Person, such
---------------
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving Credit
----------------
Exposures and unused Commitments representing at least 51% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time; provided
--------
that, for purposes of declaring the Loans to be due and payable pursuant to
Article VII, and for all purposes after the Loans become due and payable
pursuant to Article VII or the Commitments expire or terminate, the outstanding
Competitive Loans of the Lenders shall be included in their respective Revolving
Credit Exposures in determining the Required Lenders.
"Requirement of Law" means, as to any Person, any law, treaty, rule or
------------------
regulation or determination of any 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.
"Revolving Credit Exposure" means, with respect to any Lender at any
-------------------------
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and Swingline Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
--------------
<PAGE>
15
"Revolving Note" means a promissory note executed and delivered
--------------
pursuant to Section 2.09(e) evidencing the Revolving Loans made by a Lender.
"Securities Act" means the Securities Act of 1933, as from time to
--------------
time amended, and any successor statutes.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
----------------------
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board (a) with respect to the Base CD Rate, to which the
Administrative Agent is subject for new negotiable nonpersonal time deposits in
dollars of over $100,000 with maturities approximately equal to (i) three months
and (b) with respect to the LIBO Rate, to which the Lender is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those
imposed pursuant to such Regulation D. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"Subsidiary" means, with respect to any Person, a corporation of which
----------
shares of stock having ordinary voting power (other than stock 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 are at the time owned,
directly or indirectly through one or more intermediaries, or both, by such
Person.
"Swingline Commitment" means the commitment of the Swingline Lender
--------------------
made in Section 2.05(a).
"Swingline Exposure" means, at any time, the aggregate principal
------------------
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"Swingline Lender" means The Chase Manhattan Bank, in its capacity as
----------------
lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.05.
--------------
"Swingline Note" means a promissory note executed and delivered
--------------
pursuant to Section 2.09(e) evidencing the Swingline Loans made by the Swingline
Lender.
"Taxes" means any and all present or future taxes, levies, imposts,
-----
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
<PAGE>
16
"Three-Month Secondary CD Rate" means, 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 is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not 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 is not a Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of deposit dealers of
recognized standing selected by it.
"364-Day Credit Agreement" means the 364-Day Credit Agreement, dated
------------------------
as of August 15, 2000 (as amended, modified or replaced from time to time),
among the Borrower, the lenders parties thereto and The Chase Manhattan Bank, as
administrative agent.
"Transactions" means the execution, delivery and performance by the
------------
Borrower of this Agreement, the borrowing of Loans and the use of the proceeds
thereof.
"Type", when used in reference to any Loan or Borrowing, refers to
----
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the LIBO Rate, the Alternate Base Rate
or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed
Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
--------------------
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes
--------------------------------------
of this Agreement, Loans may be classified and referred to by Class (e.g., a
---
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
---
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
---
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
--- ---
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
---
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
---------------
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise (a) any definition of or
reference to any
<PAGE>
17
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) 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, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
----------------------
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP; provided that, if the Borrower notifies the
--------
Administrative Agent that the Borrower requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
ARTICLE II
The Credits
-----------
SECTION 2.01. Commitments. Subject to the terms and conditions set
-----------
forth herein, each Lender agrees to make Revolving Loans to the Borrower from
time to time during the Availability Period in an aggregate principal amount
that will not result in (a) such Lender's Revolving Credit Exposure exceeding
such Lender's Commitment or (b) the sum of the total Revolving Credit Exposures
plus the aggregate principal amount of outstanding Competitive Loans exceeding
the total Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be
--------------------
made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. Each Competitive Loan
shall be made in
<PAGE>
18
accordance with the procedures set forth in Section 2.04. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments and
--------
Competitive Bids of the Lenders are several and no Lender shall be responsible
for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith, and (ii) each Competitive Borrowing shall be comprised
entirely of Eurodollar Loans or Fixed Rate Loans as the Borrower may request in
accordance herewith. Each Swingline Loan shall be an ABR Loan. Each Lender at
its option may make any Eurodollar Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any exercise
--------
of such option shall not affect the obligation of the Borrower to repay such
Loan in accordance with the terms of this Agreement and shall not cause the
Borrower to incur as of the date of the exercise of such option any greater
liability than it shall then have under Sections 2.14 and 2.16.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $5,000,000 and not less than $10,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $5,000,000 and not less than $10,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
--------
equal to the entire unused balance of the total Commitments. Each Competitive
Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $5,000,000. Each Swingline Loan shall be in an
amount that is an integral multiple of $1,000,000 and shall be in an aggregate
minimum amount of $1,000,000. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be more
--------
than a total of 10 Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a
---------------------------------
Revolving Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00
a.m., New York City time, one Business Day before the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable
<PAGE>
19
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to the terms
-------------------------
and conditions set forth herein, from time to time during the Availability
Period the Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
--------
that the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans at any time shall not exceed
the total Commitments. To request Competitive Bids, the Borrower shall notify
the Administrative Agent of such request by telephone, in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, four
Business Days before the date of the proposed Borrowing and, in the case of a
Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one
Business Day before the date of the proposed Borrowing; provided that the
--------
Borrower may submit up to (but not more than) 3 Competitive Bid Requests on the
same day, but a Competitive Bid Request shall not be made within five Business
Days after the date of any previous Competitive Bid Request, unless any and all
such previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in
<PAGE>
20
response thereto rejected. Each such telephonic Competitive Bid Request shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Competitive Bid Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Competitive Bid
Request shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing or a
Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.06.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one
or more Competitive Bids to the Borrower in response to a Competitive Bid
Request. Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurodollar Competitive Borrowing, not later than 9:30
a.m., New York City time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $5,000,000 and an integral multiple of
$1,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by the Borrower) of the Competitive Loan or Loans that the
Lender is willing to make, (ii) the Competitive Bid Rate or Rates at which the
Lender is prepared to make such Loan or Loans (expressed as a percentage rate
per annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period applicable to each such Loan and the last day thereof.
<PAGE>
21
(c) The Administrative Agent shall promptly notify the Borrower by
telecopy of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Borrower
may accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurodollar Competitive Borrowing,
not later than 10:30 a.m., New York City time, three Business Days before the
date of the proposed Competitive Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 10:30 a.m., New York City time, on the proposed date
of the Competitive Borrowing; provided that (i) the failure of the Borrower to
--------
give such notice shall be deemed to be a rejection of each Competitive Bid, (ii)
the Borrower shall not accept a Competitive Bid made at a particular Competitive
Bid Rate for a particular interest period if the Borrower rejects a Competitive
Bid made at a lower Competitive Bid Rate for the same interest period, (iii) the
aggregate amount of the Competitive Bids accepted by the Borrower shall not
exceed the aggregate amount of the requested Competitive Borrowing specified in
the related Competitive Bid Request, (iv) to the extent necessary to comply with
clause (iii) above, the Borrower may accept Competitive Bids at the same
Competitive Bid Rate in part, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such Competitive Bid, and (v) except pursuant
to clause (iv) above, no Competitive Bid shall be accepted for a Competitive
Loan unless such Competitive Loan is in a minimum principal amount of $5,000,000
and an integral multiple of $1,000,000; provided further that if a Competitive
----------------
Loan must be in an amount less than $5,000,000 because of the provisions of
clause (iv) above, such Competitive Loan may be for a minimum of $1,000,000 or
any integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple Competitive Bids at a particular Competitive
Bid Rate pursuant to clause (iv) the amounts shall be rounded to integral
multiples of $1,000,000 in a manner determined by the Borrower. A notice given
by the Borrower pursuant to this paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Bid has been accepted (and, if
so, the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Lender, it shall submit such Competitive Bid directly
to the Borrower at least one quarter of an hour earlier than the time by which
the other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
<PAGE>
22
SECTION 2.05. Swingline Loans. (a) Subject to the terms and
---------------
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower from time to time during the Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Loans exceeding
$100,000,000 or (ii) the sum of the total Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans exceeding the total
Commitments; provided that the Swingline Lender shall not be required to make a
--------
Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender by 3:00 p.m., New York
City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
------- --------
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall
notify the Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter
<PAGE>
23
payments in respect of such Swingline Loan shall be made to the Administrative
Agent and not to the Swingline Lender. Any amounts received by the Swingline
Lender from the Borrower (or other party on behalf of the Borrower) in respect
of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a
sale of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Borrower of any default in the
payment thereof. Notwithstanding the foregoing, a Lender shall not have any
obligation to acquire a participation in a Swingline Loan pursuant to this
paragraph if an Event of Default shall have occurred and be continuing at the
time such Swingline Loan was made and such Lender shall have notified the
Swingline Lender in writing, at least one Business Day prior to the time such
Swingline Loan was made, that such Event of Default has occurred and that such
Lender will not acquire participations in Swingline Loans made while such Event
of Default is continuing.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each
---------------------
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; provided that Swingline Loans shall be made as provided
--------
in Section 2.05. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request or
Competitive Bid Request.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the Federal Funds Effective Rate or (ii) in the
case of the Borrower, the interest rate applicable to ABR Loans. If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute
such Lender's Loan included in such Borrowing.
<PAGE>
24
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing
------------------
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Competitive Borrowings or Swingline Borrowings, which may not be
converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii)whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
<PAGE>
25
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing (i) no outstanding Revolving Borrowing may
be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid,
each Eurodollar Revolving Borrowing shall be converted to an ABR Borrowing at
the end of the Interest Period applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments. (a) Unless
----------------------------------------
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
--------
shall be in minimum aggregate amounts of $10,000,000 (unless the Swingline
Commitment and/or the total Commitment, as the case may be, at such time is less
than $10,000,000, in which case, in an amount equal to the Swingline Commitment
and/or the total Commitment at such time) and, if such reduction is greater than
$5,000,000, in integral multiples of $5,000,000 in excess of such amount and
(ii) the Borrower shall not terminate or reduce the Commitments if, after giving
effect to any concurrent prepayment of the Loans in accordance with Section
2.10, the sum of the Revolving Credit Exposures plus the aggregate principal
amount of outstanding Competitive Loans would exceed the total Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
--------
of termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the
<PAGE>
26
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction
of the Commitments shall be permanent. Each reduction of the Commitments shall
be made ratably among the Lenders in accordance with their respective
Commitments.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The Borrower
------------------------------------
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
on the Maturity Date, (ii) to the Administrative Agent for the account of each
Lender with an outstanding Competitive Loan the then unpaid principal amount of
such Competitive Loan on the last day of the Interest Period applicable to such
Loan and (iii) to the Administrative Agent the then unpaid principal amount of
each Swingline Loan on the Maturity Date; provided that on each date that a
--------
Revolving Borrowing or Competitive Borrowing is made, the Borrower shall repay
all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
----- -----
amounts of the obligations recorded therein; provided that the failure of any
--------
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement. If there is a conflict
in entries made in the accounts maintained pursuant to paragraph (b) or (c) of
this Section, the entries made in the accounts maintained by the Administrative
Agent shall be such prima facie evidence of the existence and amounts of the
----- -----
obligations.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent.
<PAGE>
27
SECTION 2.10. Prepayment of Loans. (a) The Borrower shall have the
-------------------
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (b) of this Section;
provided that the Borrower shall not have the right to prepay any Competitive
--------
Loan without the prior consent of the Lender thereof.
(b) The Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of prepayment or (iii) in the
case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City
time, on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given
--------
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.08, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.08. Promptly
following receipt of any such notice relating to a Revolving Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Revolving Borrowing shall be in an amount that would
be permitted in the case of an advance of a Revolving Borrowing of the same Type
as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.12
and shall be subject to Section 2.15.
SECTION 2.11. Fees. (a) The Borrower agrees to pay to the
----
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Rate on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the
Effective Date to but excluding the date on which such Commitment terminates;
provided that, if such Lender continues to have any Revolving Credit Exposure
--------
after its Commitment terminates, then such facility fee shall continue to accrue
on the daily amount of such Lender's Revolving Credit Exposure from and
including the date on which its Commitment terminates to but excluding the date
on which such Lender ceases to have any Revolving Credit Exposure. Accrued
facility fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Commitments
terminate, commencing on the first such date to occur after the date hereof;
provided that any facility fees accruing after the date on which the Commitments
--------
terminate shall be payable on demand. All facility fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
<PAGE>
28
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a utilization fee in an amount equal to 0.05% on the
aggregate principal amount of the Loans outstanding for each day on which the
sum of such Loans and the loans outstanding under the 364-Day Credit Agreement
equal or exceed 50% of the sum of the total amount of the Commitments (or if the
Commitments have terminated and Loans are outstanding, the Commitments as in
effect immediately prior to termination) and the total amount of the commitments
under the 364-Day Credit Agreement (or, if the commitments thereunder have
terminated and there are loans outstanding, the commitments as in effect
immediately prior to termination). Accrued utilization fees shall be payable in
arrears on the last day of March, June, September and December of each year and
on the date on which the Commitments terminate, commencing on the first such
date to occur after the date hereof; provided that any facility fees accruing
--------
after the date on which the Commitments terminate shall be payable on demand.
All utilization fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first day
but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees to the Lenders. Fees paid shall not be refundable
under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing
--------
(including each Swingline Loan) shall bear interest at a rate per annum equal to
the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at a rate per annum equal to (i) in the case of a Eurodollar Revolving
Loan, the LIBO Rate for the Interest Period in effect for such Borrowing plus
the Applicable Rate, or (ii) in the case of a Eurodollar Competitive Loan, the
LIBO Rate for the Interest Period in effect for such Borrowing plus (or minus,
as applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at a rate per annum
equal to the Fixed Rate applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of
<PAGE>
29
any Loan, 2% plus the rate otherwise applicable to such Loan as provided above
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR
Loans as provided above.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; provided that (i) interest accrued pursuant
--------
to paragraph (d) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment, (iii) in the event of any conversion of any Eurodollar
Revolving Loan prior to the end of the current Interest Period therefor, accrued
interest on such Loan shall be payable on the effective date of such conversion
and (iv) all accrued interest shall be payable upon termination of the
Commitments.
(f) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the
--------------------------
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the LIBO Rate, as applicable, for such Interest Period;
or
(b) the Administrative Agent is advised by the Required Lenders (or,
in the case of a Eurodollar Competitive Loan, the Lender that is required to
make such Loan) that the LIBO Rate, as applicable, for such Interest Period will
not adequately and fairly reflect the cost to such Lenders (or Lender) of making
or maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any
request by the Borrower for a
<PAGE>
30
Eurodollar Competitive Borrowing shall be ineffective; provided that (A) if the
--------
circumstances giving rise to such notice do not affect all the Lenders, then
requests by the Borrower for Eurodollar Competitive Borrowings may be made to
Lenders that are not affected thereby and (B) if the circumstances giving rise
to such notice affect only one Type of Borrowings, then the other Type of
Borrowings shall be permitted.
SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
---------------
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement as
is covered by Section 2.14 (c)); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans or Fixed Rate Loans
made by such Lender therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) (excluding any such increased
costs from Taxes or Excluded Taxes) or to reduce the amount of any sum received
or receivable by such Lender hereunder (whether of principal, interest or
otherwise), then the Borrower will upon notice by such Lender pay to such Lender
such additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by such Lender to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will upon notice by such Lender compensate
such Lender or such Lender's holding company for any such reduction suffered to
the extent allocable to this Agreement.
(c) The Borrower shall pay to each Lender at any time when such
Lender is required to maintain reserves for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board),
additional interest on the unpaid principal amount of each Eurodollar Loan of
such Lender from the date of such requirement until such principal amount is
paid in full or such requirement ceases at the rate per annum equal to (i) the
LIBO
<PAGE>
31
rate for the relevant Interest Period multiplied by (ii) the Statutory Reserve
Rate for such Lender minus (iii) such LIBO Rate, payable upon notice by such
Lender on each Interest Payment Date for such Eurodollar Loan.
(d) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a), (b) or (c) of this Section shall be delivered to
the Borrower and shall be conclusive absent manifest error. The Borrower shall
pay such Lender the amount shown as due on any such certificate within 10 days
after receipt thereof.
(e) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
--------
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than six months prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
-------- -------
or reductions is retroactive, then the six-month period referred to above shall
be extended to include the period of retroactive effect thereof.
(f) Notwithstanding the foregoing provisions of this Section, a
Lender shall not be entitled to compensation pursuant to this Section in respect
of any Competitive Loan if the Change in Law that would otherwise entitle it to
such compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
SECTION 2.15. Break Funding Payments. In the event of (a) the
----------------------
payment of any principal of any Eurodollar Loan or Fixed Rate Loan other than on
the last day of an Interest Period applicable thereto (including as a result of
an Event of Default), (b) the conversion of any Eurodollar Loan other than on
the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Eurodollar Loan on the date specified in
any notice delivered pursuant hereto (regardless of whether such notice is
permitted to be revocable under Section 2.10(b) and is revoked in accordance
herewith), (d) the failure to borrow any Competitive Loan after accepting the
Competitive Bid to make such Loan, or (e) the assignment of any Eurodollar Loan
or Fixed Rate Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.18, then,
in any such event, the Borrower shall compensate each Lender for the loss, cost
and expense attributable to such event (excluding any loss of anticipated
profits). In the case of a Eurodollar Loan, the loss to any Lender attributable
to any such event shall be deemed to include an amount determined by such Lender
to be equal to the excess, if any, of (i) the amount of interest that such
Lender would pay for a deposit equal to the principal amount of such Loan for
the period from the date of such payment, conversion, failure or assignment to
<PAGE>
32
the last day of the then current Interest Period for such Loan (or, in the case
of a failure to borrow, convert or continue, the duration of the Interest Period
that would have resulted from such borrowing, conversion or continuation) if the
interest rate payable on such deposit were equal to the LIBO Rate for such
Interest Period, over (ii) the amount of interest that such Lender would earn on
such principal amount for such period if such Lender were to invest such
principal amount for such period at the interest rate that would be bid by such
Lender (or an affiliate of such Lender) for dollar deposits from other banks in
the eurodollar market at the commencement of such period. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or an account of
-----
any obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if the
--------
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, and each
Lender, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
paid by the Administrative Agent, such Lender and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty
<PAGE>
33
to which such jurisdiction is a party, with respect to payments under this
Agreement shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower, 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.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-
-------------------------------------------------------
offs. (a) The Borrower shall make each payment required to be made by it
----
hereunder (whether of principal, interest, or fees, or under Section 2.14, 2.15
or 2.16, or otherwise) prior to 2:00 P.M., New York City time, on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 270 Park Avenue, New
York, New York, except payments to be made directly to the Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.14,
2.15, 2.16 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, to pay interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay principal then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal then due to such
parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or Swingline Loans resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans Swingline Loans and accrued interest thereon than the proportion
received by any other Lender, then the Lender receiving such greater proportion
shall purchase (for cash at face value) participations in the Revolving Loans
and Swingline Loans of other Lenders to the extent necessary so that the benefit
of all such payments shall be shared by the Lenders ratably in accordance with
the aggregate amount of principal of and accrued interest on their respective
Revolving Loans and Swingline Loans; provided that (i) if any such
--------
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent
<PAGE>
34
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by the Borrower pursuant to
and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(c), 2.06(b) or 2.17(d), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such Sections
until all such unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a)
----------------------------------------------
If any Lender requests compensation under Section 2.14, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous in any material respect to
such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment.
<PAGE>
35
(b) If any Lender requests compensation under Section 2.14, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained
in Section 9.04), all its interests, rights and obligations under this Agreement
(other than any outstanding Competitive Loans held by it) to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Borrower shall have received the
--------
prior written consent of the Administrative Agent (and, if a Commitment is being
assigned, the Swingline Lender), which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans (other than Competitive Loans) and Swingline
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.14 or payments required to be made pursuant to
Section 2.16, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
SECTION 2.19. Proceeds. The proceeds of the Loans made by the
--------
Lenders to the Borrower shall be used for acquisitions, repurchases of capital
stock of the Borrower, the funding of dividends payable to shareholders of the
Borrower and for general corporate purposes of the Borrower.
ARTICLE III
Representations and Warranties
------------------------------
The Borrower represents and warrants to the Lenders that the following
statements are true, correct and complete:
SECTION 3.01. Organization, Powers and Good Standing. (a) The
--------------------------------------
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation. The Borrower has all
requisite corporate power and authority (i) to own and operate its properties
and to carry on its business as now conducted and proposed to be conducted,
except where the lack of corporate power and authority would
<PAGE>
36
not have a Material Adverse Effect and (ii) to enter into this Agreement and to
carry out the transactions contemplated hereby, and to issue the Notes.
(b) The Borrower is in good standing wherever necessary to carry on
its present business and operations, except in jurisdictions in which the
failure to be in good standing would not have a Material Adverse Effect.
(c) All of the Material Subsidiaries of the Borrower, as of the
Effective Date, are identified in Schedule 3.01 annexed hereto. Each Material
Subsidiary of the Borrower is validly existing and in good standing under the
laws of its respective jurisdiction of incorporation and has all requisite
corporate power and authority to own and operate its properties and to carry on
its business as now conducted except where failure to be in good standing or a
lack of corporate power and authority would not have a Material Adverse Effect.
SECTION 3.02. Authorization of Borrowing, etc. (a) The execution,
-------------------------------
delivery and performance of this Agreement, and the issuance, delivery and
payment of the Notes and the borrowing of the Loans have been duly authorized by
all necessary corporate action by the Borrower.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the issuance, delivery and performance of the Notes by the
Borrower, and the borrowing of the Loans do not and will not (i) violate any
provision of law applicable to the Borrower or any of its Material Subsidiaries,
(ii) violate the Certificate of Incorporation or Bylaws of the Borrower or any
of its Material Subsidiaries, (iii) violate any order, judgment or decree of any
court or other agency of government binding on the Borrower or any of its
Material Subsidiaries, 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, 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 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 and consents which have been or will be obtained on or before the
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.
(c) The execution, delivery and performance by the Borrower of this
Agreement and the issuance, delivery and performance by the Borrower of the
Notes will not require on the part of the Borrower 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.
<PAGE>
37
(d) This Agreement is and each of the Notes when executed and
delivered will be a legally valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its respective terms, except
as enforcement 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.
SECTION 3.03. Financial Condition. The Borrower has delivered to the
-------------------
Administrative Agent the following materials: (i) audited consolidated
financial statements of the Borrower and its Subsidiaries for the year ended
December 31, 1999 and (ii) unaudited consolidated financial statements of the
Borrower and its Subsidiaries for the Fiscal Quarters ended March 31, 2000 and
June 30, 2000 (collectively, the "Financial Statements"). All such Financial
Statements were prepared in accordance with GAAP except for the preparation of
footnote disclosures for the unaudited statements. All such Financial
Statements fairly present the consolidated financial position of the Borrower
and its Subsidiaries as at the respective dates thereof and the consolidated
statements of income and changes in financial position of the Borrower and its
Subsidiaries for each of the periods covered thereby, subject, in the case of
any unaudited interim financial statements, to changes resulting from normal
year-end adjustments.
SECTION 3.04. No Adverse Material Change. Since December 31, 1999,
--------------------------
there has been no change in the business, operations, properties, assets or
financial condition of the Borrower or any of its Subsidiaries, which has been,
either in any case or in the aggregate, materially adverse to the Borrower and
its Subsidiaries taken as a whole.
SECTION 3.05. Litigation. Except as disclosed in the Financial
----------
Statements delivered to the Lenders pursuant to Section 3.03 hereof or in
Schedule 3.05 to this Agreement, there is no action, suit, proceeding,
governmental investigation (including, without limitation, any of the foregoing
relating to laws, rules and regulations relating to the protection of the
environment, health and safety) of which the Borrower has knowledge or
arbitration (whether or not purportedly on behalf of the Borrower or any of its
Subsidiaries) at law or in equity or before or by any Governmental Authority,
domestic or foreign, pending or, to the knowledge of the Borrower, threatened
against the Borrower or any of its Subsidiaries or affecting any property of the
Borrower or any of its Subsidiaries which (i) challenges the validity of this
Agreement or any Note or (ii) could reasonably be expected to have a Material
Adverse Effect.
SECTION 3.06. Payment of Taxes. Except to the extent permitted by
----------------
Section 5.03 hereof, the Borrower has paid or caused to be paid all taxes,
assessments, fees and other governmental charges upon the Borrower and each of
its Subsidiaries and upon their respective properties, assets, income and
franchises, except for any taxes the failure of which to pay would not have a
Material Adverse Effect or which are not yet due and payable or which
<PAGE>
38
are being contested in good faith. The Borrower does not know of any proposed
tax assessment against the Borrower or such Subsidiary that would have a
Material Adverse Effect, which is not being contested in good faith by the
Borrower or such Subsidiary; provided that such reserves or other appropriate
provisions, if any, as shall be required in conformity with GAAP shall have been
made or provided therefor.
SECTION 3.07. Governmental Regulation. (a) The Borrower is not
-----------------------
subject to regulation under the Public Utility Holding Company Act of 1935 or to
any federal or state statute or regulation limiting its ability to incur
Indebtedness for money borrowed as contemplated by this Agreement or by the
Notes.
(b) 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.
SECTION 3.08. Securities Activities. The Borrower is not engaged
---------------------
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock.
SECTION 3.09. ERISA. No ERISA Event has occurred or is reasonably
-----
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. As of the date hereof, the present value
of all accumulated benefit obligations under each Plan (based on the assumptions
used for purposes of Statement of Financial Accounting Standards No. 87) did
not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $5,000,000 the fair market value of the assets of
such Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than
$5,000,000 the fair market value of the assets of all such underfunded Plans.
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date. The obligations of the Lenders to make
--------------
Loans hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):
<PAGE>
39
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature page of
this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of Kenneth M. Vittor, General Counsel to the Borrower,
substantially in the form of Exhibit B, and covering such other matters relating
to the Borrower, this Agreement or the Transactions as the Required Lenders
shall reasonably request.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Borrower, the
authorization of the Transactions and any other legal matters relating to the
Borrower, this Agreement or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a financial
officer of the Borrower, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all reasonable and actual out-of-
pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(f) The Administrative Agent shall have received evidence
satisfactory to it that the Existing Facility has been terminated and all
amounts, if any, owing by the Borrower thereunder have been paid in full.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m., New
York City time, on August 20, 2000 (and, in the event such conditions are not so
satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to
-----------------
make a Loan on the occasion of any Borrowing is subject to the satisfaction of
the following conditions:
<PAGE>
40
(a) The representations and warranties of the Borrower set forth in
this Agreement (other than in Section 3.04 and Section 3.05(ii)) shall be true
and correct in all material respects on and as of the date of such Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section.
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Reports. The Borrower
--------------------------------------
and each of its Subsidiaries will maintain a system of accounting established
and administered in accordance with sound business practices to permit
preparation of consolidated financial statements in conformity with GAAP and the
Borrower will deliver to the Administrative Agent (which will deliver copies
thereof to the Lenders) (except to the extent otherwise expressly provided below
in subsection 5.01(b)(ii)):
(a)(i) as soon as practicable and in any event within 45 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year
ending after the Effective Date the consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such period,
and the related consolidated statements of income and shareholders' equity
and cash flows of the Borrower and its consolidated Subsidiaries in each
case certified by the chief financial officer or controller of the Borrower
that they fairly present the financial condition of the Borrower and its
consolidated subsidiaries as at the dates indicated and the results of
their operations and changes in their financial position, subject to
changes resulting from audit and normal year-end adjustments, based on the
Borrower's normal accounting procedures applied on a consistent basis
(except as noted therein);
(ii) as soon as practicable and in any event within 90 days after
the end of each Fiscal Year the consolidated balance sheet of the Borrower
and its consolidated Subsidiaries as at the end of such year and the
related consolidated statements of
<PAGE>
41
income and shareholders' equity and cash flows of the Borrower and its
consolidated Subsidiaries for such Fiscal Year, accompanied by a report
thereon of an Independent Public Accountant which report shall be
unqualified as to (w) the accuracy of all numbers or amounts set forth in
such financial statements, (x) the inclusion or reflection in such
financial statements of all amounts pertaining to contingencies required to
be included or reflected therein in accordance with GAAP, (y) going concern
and (z) scope of audit and shall state that such consolidated financial
statements present fairly the financial position of the Borrower and its
consolidated subsidiaries as at the dates indicated and the results of
their operations and changes in their financial position for the periods
indicated in conformity with GAAP applied on a basis consistent with prior
years (except as noted in such report and approved by such Independent
Public Accountant) and that the examination by such Independent Public
Accountant in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards;
The Borrower will be deemed to have complied with the requirements of
Section 5.01(a)(i) hereof if within 45 days after the end of each Fiscal Quarter
(other than the final Fiscal Quarter) of each of its Fiscal Years, a copy of the
Borrower's Form 10-Q as filed with the Securities and Exchange Commission with
respect to such Fiscal Quarter is furnished to the Administrative Agent, and the
Borrower will be deemed to have complied with the requirements of Section
5.01(a)(ii) hereof if within 90 days after the end of each of its Fiscal Years,
a copy of the Borrower's Annual Report on Form 10-K as filed with the Securities
and Exchange Commission with respect to such Fiscal Year is furnished to the
Administrative Agent.
(b)(i) together with each delivery of financial statements of the
Borrower and its consolidated subsidiaries pursuant to subdivisions (a)(i)
and (a)(ii) above, (x) an Officer's Certificate of the Borrower stating
that the signer has reviewed the terms of this Agreement and has made, or
caused to be made under such signer's supervision, a review in reasonable
detail of the transactions and condition of the Borrower and its
consolidated subsidiaries during the accounting period covered by such
financial statements and that such review has not disclosed the existence
during or at the end of such accounting period, and that the signer does
not have knowledge of the existence as at the date of the Officers'
Certificate, of any condition or event which constitutes an Event of
Default or Default, or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and what action the
Borrower has taken, is taking and proposes to take with respect thereto;
and (y) an Officer's Certificate demonstrating in reasonable detail
compliance with the restrictions contained in Section 6.03 hereof (a
"Compliance Certificate") and, in addition, a written statement of the
chief accounting officer, chief financial officer, any vice president or
the treasurer or any assistant treasurer of the Borrower describing in
reasonable detail the differences
<PAGE>
42
between the financial information contained in such financial statements
and the information contained in the Officer's Certificate relating to
compliance with Section 6.03 hereof;
(ii) promptly upon their becoming available but only to the extent
requested by the Administrative Agent, copies of all publicly available
financial statements, reports, notices and proxy statements sent by the
Borrower to its security holders, of all regular and periodic reports and
all registration statements and prospectuses, if any, filed by the Borrower
with any securities exchange or with the Securities and Exchange
Commission;
(iii) promptly upon (and in no event later than three days after) any
of the chairman of the board, the chief executive officer, the president,
the chief accounting officer, the chief financial officer or the treasurer
of the Borrower obtaining actual knowledge (x) of any condition or event
which constitutes an Event of Default or Default, or (y) of a Material
Adverse Effect, an Officer's Certificate specifying the nature and period
of existence of any such condition or event, or specifying the notice given
or action taken by such holder or Person and the nature of such claimed
default, Event of Default, Default, event or condition, and what action, if
any, the Borrower has taken, is taking and proposes to take with respect
thereto;
(iv) with reasonable promptness, such other information and data
with respect to the Borrower or any of its Subsidiaries as from time to
time may be reasonably requested by any Lender.
SECTION 5.02. Corporate Existence. Except as may result from a
-------------------
transaction permitted by Section 6.01 hereof, the Borrower will maintain its
corporate existence in good standing and qualify and remain qualified to do
business as a foreign corporation in each jurisdiction in which the character of
the properties owned or leased by it therein or in which the transaction of its
business is such that the failure to qualify would have a Material Adverse
Effect.
SECTION 5.03. Payment of Taxes. The Borrower will, and will cause
----------------
each of its Subsidiaries to, pay all taxes, assessments and other governmental
charges imposed upon it or any of its properties or assets or in respect of any
of its franchises, business, income or property when due which are material to
the Borrower and its Subsidiaries, taken as a whole, provided, that no such
amount need be paid if being contested in good faith by appropriate proceedings
diligently conducted and if such reserve or other appropriate provision, if any,
as shall be required in conformity with GAAP shall have been made therefor.
<PAGE>
43
SECTION 5.04. Maintenance of Properties; Insurance. The Borrower will
-------------------------------------
maintain or cause to be maintained in good repair, working order and condition
(ordinary wear and tear excepted) all material properties and equipment used or
useful in its business. The foregoing sentence shall not be construed as to
prohibit or restrict the sale or disposition of any assets of the Borrower or
any of its Subsidiaries. The Borrower will maintain or cause to be maintained,
with financially sound and reputable insurers, insurance with respect to its
material properties and business and the material properties and business of its
Subsidiaries against loss or damage of the kinds customarily insured against by
corporations of established reputation engaged in the same or similar businesses
and similarly situated, of such types and in such amounts as are customarily
carried under similar circumstances by such other corporations.
SECTION 5.05. Compliance with Laws. The Borrower and its Subsidiaries
--------------------
shall exercise all due diligence in order to comply in all material respects
with the requirements of all applicable laws, rules, regulations and orders of
any Governmental Authority (including, without limitation, laws, rules and
regulations relating to the disposal of hazardous wastes and asbestos in the
environment), noncompliance with which would have a Material Adverse Effect.
SECTION 5.06. Notices of ERISA Event. The Borrower will furnish to
----------------------
the Administrative Agent and each Lender prompt written notice of the occurrence
of any ERISA Event that, alone or together with any other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Borrower
and its Subsidiaries in an aggregate amount exceeding $50,000,000.
ARTICLE VI
Negative Covenants
------------------
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full,
the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Fundamental Changes. The Borrower will not consolidate
-------------------
with or merge with or into, or transfer all or substantially all of its
properties and assets to one or more Persons in one or a series of related
transactions unless (i) if the Borrower is the surviving entity in any such
transaction, after giving effect to such transaction, there would not exist any
Default or Event of Default hereunder or (ii) if the Borrower is not the
surviving entity in any such transaction, each of the Lenders (or in the case of
any such transaction which is in the nature of an internal corporate
reorganization of only the Borrower and its Subsidiaries and does not, in the
reasonable judgement of the Required Lenders affect, in any material respect,
<PAGE>
44
the creditworthiness of the Borrower, the Required Lenders) consent to such
transaction in advance.
SECTION 6.02. Liens. The Borrower will not, and will not permit any
-----
of its Subsidiaries to, directly or indirectly, create, incur, assume or permit
to exist any Lien on or with respect to any property or asset (including any
document or instrument in respect of goods or accounts receivable) of the
Borrower or any of its Subsidiaries, whether now owned or hereafter acquired, or
any income or profits therefrom, except:
(a) Liens in existence on the date hereof and set forth on Schedule
6.02 hereto;
(b) Permitted Liens;
(c) Purchase money security interests (including mortgages,
conditional sales, Capitalized Leases and any other title retention or deferred
purchase devices) in real or tangible personal property of the Borrower or any
of its Subsidiaries existing or created at the time of acquisition thereof or
within 90 days thereafter, and the renewal, extension or refunding of any such
security interest in an amount not exceeding the amount thereof remaining unpaid
immediately prior to such renewal, extension or refunding; provided, however,
-------- -------
that the principal amount of Indebtedness and Capitalized Lease Obligations
secured by each such security interest in each item of property shall not exceed
the cost (including all such Indebtedness secured thereby, whether or not
assumed) of the item subject thereto and that such security interests shall
attach solely to the particular item of property so acquired; and
(d) In addition to Liens permitted by clauses (a) through (c), the
Borrower and its Subsidiaries may have attachment or judgment Liens and Liens
securing the payment of Indebtedness, which Liens secure in the aggregate not
more than $100,000,000.
SECTION 6.03. Financial Covenants. The Borrower shall not permit the
-------------------
Indebtedness to Cash Flow Ratio for each Determination Date which is the last
day of a Fiscal Quarter of the Borrower to be greater than 4.0:1.0 at any time.
SECTION 6.04. Use of Proceeds. No portion of the proceeds of any
---------------
borrowing under this Agreement shall be used by the Borrower in any manner which
would cause the borrowing or the application of such proceeds to violate
Regulation G, Regulation U, Regulation T, or Regulation X of the Board of
Governors of the Federal Reserve System or any other regulation of the Board or
to violate the Exchange Act, in each case as in effect on the date or dates of
such borrowing and such use of proceeds.
ARTICLE VII
<PAGE>
45
Events of Default
-----------------
If any of the following conditions or events ("Events of Default")
-----------------
shall occur and be continuing:
SECTION 7.01. Failure to Make Payments When Due. Failure to pay any
---------------------------------
installment of principal of any Loan when due, whether at stated maturity, by
acceleration, by notice of prepayment or otherwise; or failure to pay any other
amount due under this Agreement (including, without limitation, the fees
described in Section 2.11 hereof) or to pay interest on any Loan, in either case
within 3 Business Days after the date when due.
SECTION 7.02. Default in Other Agreements. (a) Failure of the
---------------------------
Borrower or any of its Material Subsidiaries to pay when due, after giving
effect to any applicable grace period and to any waiver or extension granted
thereunder, any principal or interest on any Indebtedness of the Borrower or any
Material Subsidiary (other than Indebtedness referred to in subsection 7.01) and
Capital Lease Obligations in a principal amount (individually or in the
aggregate) of $50,000,000 or more.
(b) The breach or default of the Borrower or any of its Subsidiaries
with respect to any other term of any Indebtedness or Capital Lease Obligations
in a principal amount (individually or in the aggregate) of $50,000,000 or more
or any loan agreement, mortgage, indenture or other agreement relating thereto,
if such failure, default or breach results in such Indebtedness or Capital Lease
Obligations in a principal amount (individually or in the aggregate) of
$50,000,000 or more becoming or being declared by the holders thereof to be due
and payable prior to its stated maturity; provided that if the Borrower or any
--------
of its Material Subsidiaries enters into or is a party (as a borrower, guarantor
or other obligor) to any such loan agreement, mortgage, indenture or other
agreement and such instrument contains a provision in the nature of a "cross-
default" clause (whether as a default provision, a covenant or otherwise), such
provision is hereby incorporated by reference in this Agreement, mutatis
-------
mutandis, for the benefit of the Lenders and the Agent (and without giving
--------
effect to any amendment, modification or waiver unless such amendment,
modification or waiver is intended solely to cure any ambiguity, omission,
defect or inconsistency (which intention shall be determined in good faith by
the Chief Financial Officer of the Borrower)); provided, further, that
-------- -------
notwithstanding anything contained in this Agreement to the contrary, this
Section 7.02 shall not be applicable to any Indebtedness of, or Capitalized
Lease Obligation (or loan agreement, mortgage, indenture or other agreement
relating thereto) entered into by, a partnership (a "Partnership") of which any
-----------
Subsidiary of the Borrower is a general partner (a "General Partner") of said
---------------
Partnership provided that (i) such General Partner's only asset is its interest
--------
in the Partnership and (ii) such Indebtedness and/or Capitalized Lease
Obligation, as the case may be, (A) is with recourse only to such asset, the
assets of the Partnership and any asset or
<PAGE>
46
assets of any general partner or other entity that is not an Affiliate of the
General Partner and (B) is without recourse to the Borrower and any of its other
Subsidiaries.
SECTION 7.03. Breach of Certain Covenants. Failure of the Borrower to
---------------------------
perform or comply with any term or condition contained in Section 5.02 or
Article 6 of this Agreement.
SECTION 7.04. Breach of Warranty. Any material representation or
------------------
warranty made by the Borrower in this Agreement or in any statement or
certificate at any time given by the Borrower in writing pursuant hereto or
thereto or in connection herewith or therewith shall be false in any material
respect on the date as of which made or deemed to be made.
SECTION 7.05. Other Defaults Under Agreement. The Borrower shall
------------------------------
default in the performance of or compliance with any term contained in this
Agreement (other than any default described in any other provision of Section 7
hereof) and such default shall not have been remedied or waived within 30 days
after receipt by the Borrower of notice from the Agent or any Lender of such
default.
SECTION 7.06. Change In Control. (a) The acquisition (other than from
-----------------
the Borrower) by any Person or any "group", within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act (excluding, for this purpose, the
Borrower or its Subsidiaries or any employee benefit plan of the Borrower or its
Subsidiaries) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of either the then
outstanding shares of common stock or the combined voting power of the
Borrower's then outstanding voting securities entitled to vote generally in the
election of directors; or (b) individuals who, as of the date hereof, constitute
the Board of Directors of the Borrower (as of the date hereof, the "Incumbent
Board") cease for any reason to constitute at least a majority of the Board,
provided that any person becoming a director subsequent to the date hereof,
whose election, or nomination for election by the Borrower's shareholders, was
approved by a vote of at least a majority of the directors then comprising the
Incumbent Board (other than an election or nomination of an individual whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election of the directors of the Borrower, as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) shall be, for purposes of this provision, considered as though
such person were a member of the Incumbent Board.
SECTION 7.07. Involuntary Bankruptcy; Appointment of Receiver, etc.
-----------------------------------------------------
(a) A court having jurisdiction in the premises shall enter a decree or order
for relief in respect of
<PAGE>
47
the Borrower or any of its Material Subsidiaries in an involuntary case under
the Bankruptcy Code or any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, which decree or order is not stayed; or any
other similar relief shall be granted under any applicable federal or state law
and is not stayed.
(b) An involuntary case is commenced against the Borrower or any of
its Material Subsidiaries under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over the
Borrower or any of its Material Subsidiaries, or over all or a substantial part
of its property, shall have been entered; or an interim receiver, trustee or
other custodian of the Borrower or any of its Material Subsidiaries for all or a
substantial part of the property of the Borrower or any of its Material
Subsidiaries is involuntarily appointed; or a warrant of attachment, execution
or similar process is issued against any substantial part of the property of the
Borrower or any of its Material Subsidiaries; and the continuance of any such
events in subpart (b) for 90 days unless dismissed, bonded or discharged.
SECTION 7.08. Voluntary Bankruptcy; Appointment of Receiver, etc. The
--------------------------------------------------
Borrower or any of its Material Subsidiaries shall have an order for relief
entered with respect to it or commence a voluntary case under the Bankruptcy
Code or any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property; the making by the Borrower or any of its Material
Subsidiaries of any assignment for the benefit of creditors generally; or the
inability or failure of the Borrower or any of its Material Subsidiaries, or the
admission by the Borrower or any of its Material Subsidiaries in writing of its
inability to pay its debts as such debts become due; or the Board of Directors
of the Borrower or any Material Subsidiary (or any committee thereof) adopts any
resolution or otherwise authorizes action to approve any of the foregoing; or
SECTION 7.09. Judgments and Attachments. Any money judgment, writ or
-------------------------
warrant of attachment, or similar process involving individually or at any one
time in the aggregate an amount in excess of $100,000,000 (calculated net of
insurance coverage, so long as such coverage has been accepted by the relevant
insurance company or companies) shall be entered or filed against the Borrower
or any of its Subsidiaries or any of its assets and shall remain undischarged,
unvacated, unbonded or unstayed, as the case may be, for a period of 90 days or
in any event later than five days prior to the date of any announced sale
thereunder; or
<PAGE>
48
SECTION 7.10. Involuntary Dissolution. Any order, judgment or decree
-----------------------
shall be entered against the Borrower or any of its Material Subsidiaries
decreeing the dissolution or split up of the Borrower or any of its Material
Subsidiaries and such order shall remain undischarged or unstayed for a period
in excess of 60 days; or
SECTION 7.11. ERISA Event. An ERISA Event shall have occurred that,
-----------
when taken together with all other ERISA Events that have occurred, could
reasonably be expected to result in a Material Adverse Effect;
THEN (i) upon the occurrence of any Event of Default described in the
foregoing subsection 7.07 or 7.08, the unpaid principal amount of and accrued
interest on the Loans and any fees and other amounts owing by the Borrower under
this Agreement and the Notes shall automatically become immediately due and
payable, without presentment, demand, protest or other requirements of any kind,
all of which are hereby expressly waived by the Borrower and the obligation of
each Lender to make any Loans shall thereupon terminate, and (ii) upon the
occurrence of any other Event of Default, the Agent, as directed by the Required
Lenders, may, by written notice to the Borrower, declare all of the unpaid
principal amount of and accrued interest on the Loans and any fees and other
amounts owing by the Borrower under this Agreement and the Notes to be, and the
same shall forthwith become immediately, due and payable, together with accrued
interest thereon, and the obligation of each Lender to make any Loan hereunder
shall thereupon terminate. Nevertheless, if at any time within 60 days after
acceleration of the maturity of the Loans the Borrower shall pay all arrears of
interest and all payments on account of the principal which shall have become
due otherwise than by acceleration (with interest on principal and, to the
extent permitted by law, on overdue interest, at the rates specified in this
Agreement or the Notes) and all other fees or expenses then owed hereunder and
all Events of Default and Defaults (other than non-payment of principal of and
accrued interest on the Loans and the Notes due and payable solely by virtue of
acceleration) shall be remedied or waived pursuant to Section 9.02 hereof, then
the Required Lenders by written notice to the Borrower may (in their sole
discretion) rescind and annul the acceleration and its consequences; but such
action shall not affect any subsequent Event of Default or Default or impair any
right consequent thereon.
ARTICLE VIII
The Administrative Agent
------------------------
Each of the Lenders hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
<PAGE>
49
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders, and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Subsidiaries that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders or
in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents
of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
<PAGE>
50
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
Each Lender acknowledges 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 credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges 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 from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
It is agreed that the Co-Syndication Agents shall have no duties,
responsibilities or liabilities hereunder in their capacities as such.
<PAGE>
51
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01. Notices. Except in the case of notices and other
--------
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 1221 Avenue of the Americas, New
York, New York 10020, Attention of Frank Penglase, Senior Vice President and
Treasurer (Telecopy No. (212) 512-4078), with a copy to Attention of Kenneth M.
Vittor, Executive Vice President and General Counsel (Telecopy No. (212) 512-
4827);
(b) if to the Administrative Agent, to The Chase Manhattan Bank,
Agent Bank Services Group, Chase Manhattan Plaza, 8th Floor, New York, New York
10081, Attention of Janet Belden Telecopy No. (212) 552-5658, with a copy to The
Chase Manhattan Bank, Chase Manhattan Plaza, 4th Floor, New York 10081,
Attention of Bruce E. Langenkamp Telecopy No. (212) 270-7340;
(c) if to the Swingline Lender, to The Chase Manhattan Bank, Agent
Bank Services Group, Chase Manhattan Plaza, 8th Floor, New York, New York 10081,
Attention of Janet Belden Telecopy No. (212) 552-5658; and
(d) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
--------------------
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such
<PAGE>
52
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing, the
making of a Loan shall not be construed as a waiver of any Default, regardless
of whether the Administrative Agent or any Lender may have had notice or
knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
--------
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.17(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, or (v)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender; provided further that no such agreement shall amend, modify or
----------------
otherwise affect the rights or duties of the Administrative Agent or the
Swingline Lender hereunder without the prior written consent of the
Administrative Agent or the Swingline Lender, as the case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
-----------------------------------
shall pay (i) all reasonable and actual out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable and actual
fees, charges and disbursements of counsel for the Administrative Agent, in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated) and (ii) all
reasonable and actual out-of-pocket expenses incurred by the Administrative
Agent or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made
hereunder, including in connection with any workout, restructuring or
negotiations in respect thereof.
(b) The Borrower shall indemnify the Administrative Agent and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
----------
any and all losses, claims,
<PAGE>
53
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any actual or alleged presence or release
of hazardous materials on or from any property owned or operated by the Borrower
or any of its Subsidiaries, or any environmental liability related in any way to
the Borrower or any of its Subsidiaries, or (iii) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
--------
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses resulted from the gross negligence or wilful
misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent or the Swingline Lender under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or the Swingline Lender, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
--------
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or the Swingline Lender in its capacity as
such.
(d) To the extent permitted by applicable law, each of the Borrower,
the Lenders and the Administrative Agent shall not assert, and hereby waives,
any claim against any Indemnitee or any other party hereto, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions or the use of the proceeds thereof.
(e) The Borrower shall not be liable for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses and disbursements which may be imposed on, incurred by or
asserted against an Indemnitee that is a Lender by another Lender or any entity
which has purchased or otherwise acquired a participation in any Loan,
Commitment or interest herein or in a Note of such Indemnitee to the extent such
relate solely to or arise solely out of actions taken or not taken by the
Indemnitee Lender in connection with matters that are of an "interbank nature".
To the extent that the undertaking to indemnify, pay and hold harmless set forth
in the preceding sentence may be unenforceable because it is violative of any
law or public policy or otherwise, the Borrower shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law, to the
payment and satisfaction of all indemnified liabilities incurred by the
Indemnitees or any of them.
<PAGE>
54
(f) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
-----------------------
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it); provided that (i)
--------
except in the case of an assignment to a Lender, each of the Borrower and the
Administrative Agent (and, in the case of an assignment of all or a portion of a
Commitment or any Lender's obligations in respect of its Swingline Exposure, the
Swingline Lender) must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld it being understood that the
Borrower will not be deemed to act unreasonably if it shall withhold consent on
the basis of concerns relating to a proposed assignee's creditworthiness), (ii)
except in the case of an assignment to a Lender or an assignment of the entire
remaining amount of the assigning Lender's Commitment, the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000 unless
each of the Borrower and the Administrative Agent otherwise consent, (iii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement, except that
this clause (iii) shall not apply to rights in respect of outstanding
Competitive Loans, (iv) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, and (v) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; provided further that any consent of the Borrower otherwise
----------------
required under this paragraph shall not be required if an Event of Default under
Section 7.07 or 7.08 has occurred and is continuing. Upon acceptance and
recording pursuant to paragraph (d) of this Section, from and after the
effective date specified in each Assignment and Acceptance, the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under
<PAGE>
55
this Agreement (and, in the case of an Assignment and Acceptance covering all of
the assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
--------
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Swingline Lender, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
-----------
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
--------
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
--------
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
9.02(b) that affects such Participant.
<PAGE>
56
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.16 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.16 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.16(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, to a Federal Reserve Bank, and this Section shall not apply to
any such pledge or assignment of a security interest; provided that no such
--------
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any Federal Reserve Bank for such Lender
as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations
---------
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
-----------------------------------------
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
<PAGE>
57
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to
------------
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
---------------
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
--------------------------------------------------
Process. (a) This Agreement shall be construed in accordance with and governed
-------
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement
shall affect any right that the Administrative Agent or any Lender may otherwise
have to bring any action or proceeding relating to this Agreement against the
Borrower or its properties in the courts of any jurisdiction.
<PAGE>
58
(c) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
--------------------
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table
--------
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
<PAGE>
59
SECTION 9.12. Confidentiality. The Lenders shall hold all non-
---------------
public information obtained pursuant to this Agreement which has been identified
as such by the Borrower in accordance with their customary procedures for
handling confidential information of this nature and in accordance with safe and
sound banking practices and in any event may make disclosure reasonably required
by any bona fide transferee or participant in connection with the contemplated
transfer of any Note, Loan or Commitment or participation therein or as required
or requested by any governmental agency or representative thereof or pursuant to
legal process; provided that, unless specifically prohibited by applicable law
--------
or court order, each Lender shall notify the Borrower of any request by any
governmental agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such Lender by such
governmental agency) or request pursuant to legal process for disclosure of any
such non-public information prior to disclosure of such information so that
either or both of them may seek an appropriate protective order; and further,
-------
provided that in no event shall any Lender be obligated or required to return
--------
any materials furnished by the Borrower or any of its Subsidiaries.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
THE McGRAW-HILL COMPANIES, INC.
By:_________________________________
Name:
Title:
<PAGE>
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By:_________________________________
Name:
Title:
<PAGE>
BANK OF AMERICA, N.A.,
as Co-Syndication Agent and as a Lender
By:_________________________________
Name:
Title:
<PAGE>
CITIBANK, N.A.,
as Co-Syndication Agent and as a Lender
By:_________________________________
Name:
Title:
<PAGE>
DEUTSCHE BANK AG NEW YORK
BRANCH AND/OR CAYMAN ISLANDS
BRANCH, as Co-Syndication Agent and as a
Lender
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
<PAGE>
BANCA DI ROMA -- NEW YORK
BRANCH
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
<PAGE>
THE BANK OF NEW YORK
By:_________________________________
Name:
Title:
<PAGE>
FIRST UNION NATIONAL BANK
By:_________________________________
Name:
Title:
<PAGE>
FLEET NATIONAL BANK
By:_________________________________
Name:
Title:
<PAGE>
THE FUJI BANK, LIMITED
By:_________________________________
Name:
Title:
<PAGE>
NATIONAL WESTMINSTER BANK, PLC
By:_________________________________
Name:
Title:
<PAGE>
THE NORTHERN TRUST COMPANY
By:_________________________________
Name:
Title:
<PAGE>
EXHIBIT A
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Five-Year Credit Agreement dated as of August __,
2000 (as amended and in effect on the date hereof, the "Credit Agreement"),
----------------
among The McGraw-Hill Companies, Inc., the Lenders named therein and The Chase
Manhattan Bank, as Administrative Agent for the Lenders. Terms defined in the
Credit Agreement are used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and assigns, without
recourse, to the Assignee named on the reverse hereof, and the Assignee hereby
purchases and assumes, without recourse, from the Assignor, effective as of the
Assignment Date set forth on the reverse hereof, the interests set forth on the
reverse hereof (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth on the reverse hereof in the Commitment of the Assignor on
the Assignment Date and Revolving Loans and Competitive Loans owing to the
Assignor which are outstanding on the Assignment Date, together with the
participations in Swingline Loans held by the Assignor on the Assignment Date,
but excluding accrued interest and fees to and excluding the Assignment Date.
The Assignee hereby acknowledges receipt of a copy of the Credit Agreement. From
and after the Assignment Date (i) the Assignee shall be a party to and be bound
by the provisions of the Credit Agreement and, to the extent of the Assigned
Interest, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent of the Assigned Interest, relinquish its rights
and be released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.16(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The [Assignee/Assignor] shall pay the fee payable to the
Administrative Agent pursuant to Section 9.04(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
<PAGE>
2
<TABLE>
<CAPTION>
================================================================================================
Percentage Assigned of
Facility/Commitment (set
Principal Amount forth, to at least 8 decimals,
Assigned (and identifying as a percentage of the
information as to Facility and the aggregate
individual Competitive Commitments of all Lenders
-----------
Facility Loans) thereunder)
-------- ----- ----------
------------------------------------------------------------------------------------------------
<S> <C> <C>
Commitment Assigned: $ %
------------------------------------------------------------------------------------------------
Revolving Loans:
------------------------------------------------------------------------------------------------
Competitive Loans:
================================================================================================
</TABLE>
The terms set forth above and on the reverse side hereof are hereby agreed to:
[Name of Assignor], as Assignor
------------------
By: ______________________________
Name:
Title:
[Name of Assignee], as Assignee
------------------
By: ______________________________
Name:
Title:
The undersigned hereby consent to the within assignment:
The McGraw-Hill Companies, Inc.,
By: ________________________
Name:
Title:
The Chase Manhattan Bank, as The Chase Manhattan Bank,
Administrative Agent, Swingline Lender,
By: ___________________________ By: ___________________________
Name: Name:
Title: Title:
<PAGE>
Exhibit B
August 15, 2000
To The Chase Manhattan Bank,
as Administrative Agent
To each of the Lenders listed
on Schedule I hereto:
I am the General Counsel of The McGraw-Hill Companies, Inc., a New
York corporation (the "Borrower"). This opinion is being furnished to you
pursuant to Section 4.01 of that certain 364-Day Credit Agreement and that
certain Five-Year Credit Agreement, each dated as of August 15, 2000 (the
"Agreements"), among the Borrower, each of the Lenders (the "Lenders") listed
herein and The Chase Manhattan Bank, as Administrative Agent (the
"Administrative Agent"). The undersigned has prepared this opinion and
delivered it to the Lenders 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 Agreements.
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 the 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, deliver and perform its obligations under the Agreements. The
execution, delivery and performance of the Agreements have been duly
authorized by all necessary corporate action by the Borrower.
3. The execution, delivery and performance by the Borrower of the
Agreements do not and will not (i) violate any provision of law applicable
to the Borrower, or any of its Material Subsidiaries, the Restated
Certificate of Incorporation or By-Laws of the Borrower or the Certificate
of Incorporation or By-Laws of 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
1
<PAGE>
Subsidiaries other than such approvals or consents which have been obtained
or will be obtained on or before the 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 Borrower has duly executed and delivered the Agreements. The
Agreements are the legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with their respective terms,
except as enforceability may be limited by the application of bankruptcy,
reorganization, insolvency, moratorium and other laws affecting creditors'
rights generally from time to time in effect and to general equitable
principles.
5. Except as disclosed in the Financial Statements delivered to the
Lenders pursuant to Section 3.03 of the Agreements, there is no action,
suit, proceeding, governmental investigation or arbitration of which I have
knowledge (whether or not purportedly on behalf of the Borrower or any of
its Subsidiaries) at law or in equity or before or by any Governmental
Authority, domestic or foreign, pending or, to my knowledge, threatened
against the Borrower or any of its Subsidiaries or affecting any property
of the Borrower or any of its Subsidiaries which (i) challenges the
validity of the Agreements or (ii) could reasonably be expected to have a
Material Adverse Effect.
6. The execution, delivery and performance by the Borrower of the
Agreements 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.
7. 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.
8. The Borrower is not subject to regulation under any federal or
state statute or regulation limiting its ability to incur indebtedness for
money borrowed as contemplated by the Agreements.
I am admitted to the 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,
Kenneth M. Vittor
2
<PAGE>
SCHEDULE I
----------
The Chase Manhattan Bank
Citibank, N.A.
Bank of America
Deutsche Bank AG New York
First Union National Bank
National Westminster Bank PLC
The Bank of New York
The Fuji Bank Limited
The Northern Trust Company
Banca di Roma
Fleet National Bank
3
<PAGE>
SCHEDULE 2.01 TO
CREDIT AGREEMENT
----------------
LENDERS' COMMITMENTS
--------------------
--------------------------------------------------------------------------------
LENDER COMMITMENT
------ ----------
--------------------------------------------------------------------------------
The Chase Manhattan Bank $95,000,000
Domestic and Eurodollar Lending Office:
One Chase Manhattan Plaza
New York, N Y 10081
Attention: Linda Wisnieski
Telephone: (212) 522-6414
Facsimile: (212) 522-4266
--------------------------------------------------------------------------------
Bank of America, N.A. $85,000,000
Domestic and Eurodollar Lending Office:
130 Liberty Street
New York, NY 10006
Attention: Mary Jo Jolly
Telephone: (212) 250-5860
Facsimile: (212) 250-7351
--------------------------------------------------------------------------------
Citibank, N.A. $85,000,000
Domestic and Eurodollar Lending Office:
1 Court Square 7/3
Long Island City, NY 11120
Attention: Sandy Rivera
Telephone: (718) 248-7205
Facsimile: (718) 248-4844
--------------------------------------------------------------------------------
Deutsche Bank AG New York and/or Cayman Islands Branch $85,000,000
Domestic and Eurodollar Lending Office:
31 West 52/nd/ Street
New York, NY 10019
Attention: William W. McGinty
Telephone: (212) 469-8662
Facsimile (212) 469-7070
--------------------------------------------------------------------------------
<PAGE>
2
--------------------------------------------------------------------------------
LENDER COMMITMENT
------ ----------
--------------------------------------------------------------------------------
Banca di Roma -- New York Branch $25,000,000
Domestic and Eurodollar Lending Office:
34 East 51/st/ Street
New York, NY 10022
Attention: Steven Paley
Telephone: (212) 407-1791
Facsimile: (212) 407-1740
--------------------------------------------------------------------------------
The Bank of New York $50,000,000
Domestic and Eurodollar Lending Office:
One Wall Street
New York, NY 10286
Attention: Trisha E. Hardy
Telephone: (212) 635-8473
Facsimile: (212) 635-8595
--------------------------------------------------------------------------------
First Union National Bank $50,000,000
Domestic and Eurodollar Lending Office:
Attention:
Telephone:
Facsimile:
--------------------------------------------------------------------------------
Fleet National Bank $50,000,000
Domestic and Eurodollar Lending Office:
100 Federal Street
Boston, MA 02110
Attention: Julie V. Jalelian
Telephone: (617) 374-4105
Facsimile: (617)
--------------------------------------------------------------------------------
<PAGE>
3
--------------------------------------------------------------------------------
LENDER COMMITMENT
------ ----------
--------------------------------------------------------------------------------
Fuji Bank Limited $25,000,000
Domestic and Eurodollar Lending Office:
Two World Trade Center
New York, NY 10046
Attention: Yua Tanaka
Telephone: (212) 898-2000
Facsimile: (212) 321-9407
--------------------------------------------------------------------------------
National Westminster Bank PLC $37,500,000
Domestic Lending Office:
National Westminster Bank PLC/New York Branch
175 Water Street, 19th Floor
New York, NY 10038
Telephone: (212) 602-4180
Facsimile: (212) 602-4118
Eurodollar Lending Office:
National Westminster Bank PLC/Nassau Branch
175 Water Street, 19th Floor
New York, NY 10038
Telephone: (212) 602-4180
Facsimile: (212) 602-4118
--------------------------------------------------------------------------------
The Northern Trust Company $37,500,000
Domestic and Eurodollar Lending Office:
50 South Lasalle Street
Chicago, IL 60675
Attention: Lisa M. Taylor
Telephone: (312) 444-4196
Facsimile: (312) 630-6062
--------------------------------------------------------------------------------
TOTAL: $625,000,000
--------------------------------------------------------------------------------
<PAGE>
SCHEDULE 3.01 TO
CREDIT AGREEMENT
----------------
MATERIAL SUBSIDIARIES
---------------------
None.
<PAGE>
SCHEDULE 3.05 TO
CREDIT AGREEMENT
----------------
MATERIAL LITIGATION
-------------------
None.
<PAGE>
SCHEDULE 6.02 TO
CREDIT AGREEMENT
----------------
LIENS
-----
None.
