Exhibit 10.1
CONFORMED COPY
$50,000,000
CREDIT AGREEMENT
dated as of
March 30, 1995 among
John Wiley & Sons, Inc., The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Agent
TABLE OF CONTENTS(1)
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions
SECTION 1.02. Accounting Terms and Determinations
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend
SECTION 2.02. Method of Borrowing
SECTION 2.03. Notes
SECTION 2.04. Maturity of Loans
SECTION 2.05. Interest Rates
SECTION 2.06. Facility Fees
SECTION 2.07. Optional Termination
or Reduction of Commitments
SECTION 2.08. Mandatory Termination
of Commitments
SECTION 2.09. Optional Prepayments
SECTION 2.10. General Provisions
as to Payments
SECTION 2.11. Funding Losses
SECTION 2.12. Computation of
Interest and Fees
SECTION 2.13. Withholding Tax Exemption
SECTION 2.14. Change of Control
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness
SECTION 3.02. Borrowings
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power
SECTION 4.02. Corporate and Governmental
Authorization; No Contravention
SECTION 4.03. Binding Effect
SECTION 4.04. Financial Information
SECTION 4.05. Litigation
SECTION 4.06. Compliance with ERISA
SECTION 4.07. Taxes
SECTION 4.08. Subsidiaries
SECTION 4.09. Not an Investment Company
SECTION 4.10. Status of Notes
SECTION 4.11. Environmental Matters
ARTICLE V
COVENANTS
SECTION 5.01. Information
SECTION 5.02. Payment of Taxes;Insurance;
Maintenance of Corporate Existence
SECTION 5.03. Maintenance of Property; Conduct of Business
SECTION 5.04. Compliance with Laws
SECTION 5.05. Inspection of Property, Books and Records
SECTION 5.06. Limitation on Liens
SECTION 5.07. Consolidations, Mergers and Sales of Assets
SECTION 5.08. Use of Proceeds
SECTION 5.09. Subsidiary Debt
SECTION 5.10. Consolidated Shareholders' Equity
SECTION 5.11. Debt to Subsidiaries
SECTION 5.12. EBIT/TD Ratio
SECTION 5.13. Restricted Paymentsand Guarantees
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default
SECTION 6.02. Notice of Default
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization
SECTION 7.02. Agent and Affiliates
SECTION 7.03. Action by Agent
SECTION 7.04. Consultation with Experts
SECTION 7.05. Liability of Agent
SECTION 7.06. Indemnification
SECTION 7.07. Credit Decision
SECTION 7.08. Successor Agent
SECTION 7.09. Agent's Fee
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining
Interest Rate Inadequate or Unfair
SECTION 8.02. Illegality
SECTION 8.03. Increased Cost and Reduced Return
SECTION 8.04. Base Rate Loans Substituted
for Affected Fixed Rate Loans
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices
SECTION 9.02. No Waivers
SECTION 9.03. Expenses; Documentary Taxes; Indemnification
SECTION 9.04. Sharing of Set-Offs
SECTION 9.05. Amendments and Waivers
SECTION 9.06. Successors and Assigns
SECTION 9.07. Collateral
SECTION 9.08. New York Law
SECTION 9.09. Counterparts; Integration
Exhibit A - Note
Exhibit B - Opinion of Counsel for the Borrower
Exhibit C - Opinion of Special Counsel for the Agent
(1) The table of contents is not a part of this Agreement.
CREDIT AGREEMENT
AGREEMENT dated as of March 30, 1995 among JOHN WILEY &
SONS, INC., the BANKS listed on the signature pages hereof
and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used
herein, have the following meanings:
"Adjusted CD Rate" has the meaning set forth in Section
2.05(b).
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.05(c).
"Administrative Questionnaire" means, with respect to
each Bank, the administrative questionnaire in the form
submitted to such Bank by the Agent and submitted to the
Agent (with a copy to the Borrower) duly completed by such
Bank.
"Agent" means Morgan Guaranty Trust Company of New York
in its capacity as agent for the Banks hereunder, and its
successors in such capacity.
"Applicable Lending Office" means, with respect to any
Bank, (i) in the case of its Domestic Loans, its Domestic
Lending Office and (ii) in the case of its Euro-Dollar
Loans, its Euro-Dollar Lending Office.
"Applicable Margin" has the meaning set forth in Section
2.05(e).
"Assessment Rate" has the meaning set forth in Section
2.05(b).
"Assignee" has the meaning set forth in Section 9.06(c).
"Bank" means each bank listed on the signature pages hereof,
each Assignee which becomes a Bank pursuant to Section
9.06(c), and their respective successors.
"Base Rate" means, for any day, a rate per annum equal
to the higher of (i) the Prime Rate for such day and (ii)
the sum of 1/2 of 1% plus the Federal Funds Rate for such
day.
"Base Rate Loan" means a Loan to be made by a Bank as a
Base Rate Loan pursuant to the applicable Notice of
Borrowing or Article VIII.
"Benefit Arrangement" means at any time an employee
benefit plan within the meaning of Section 3(3) of ERISA
which is not a Plan or a Multiemployer Plan and which is
maintained or otherwise contributed to by any member of the
ERISA Group.
"Board" means the Board of Directors of the Borrower or
a committee of directors lawfully exercising the relevant
powers of the Board.
"Borrower" means John Wiley & Sons, Inc., a New York
corporation, and its successors.
"Borrower's 1994 Form 10-K" means the Borrower's annual
report on Form 10-K for the fiscal year ended April 30,
1994, as filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934.
"Borrowing" means a borrowing hereunder consisting of
Loans made to the Borrower at the same time by the Banks
pursuant to Article II. A Borrowing is a "Domestic
Borrowing" if such Loans are Domestic Loans or a "EuroDollar
Borrowing" if such Loans are Euro-Dollar Loans. A Domestic
Borrowing is a "CD Borrowing" if such Domestic Loans are CD
Loans or a "Base Rate Borrowing" if such Domestic Loans are
Base Rate Loans.
"Capital Lease" means any lease of property which, in
accordance with GAAP, should be capitalized on the lessee's
balance sheet; and "Capital Lease Obligation" means the
amount of the liability which should be so capitalized.
"CD Base Rate" has the meaning set forth in Section 2.05(b).
"CD Loan" means a Loan to be made by a Bank as a CD
Loan pursuant to the applicable Notice of Borrowing.
"College Publishing Segment" means the business segment
of the Borrower and its Subsidiaries attributable to
textbooks and other related materials for colleges and
universities.
"Commitment" means, with respect to each Bank, the
amount set forth opposite the name of such Bank on the
signature pages hereof, as such amount may be reduced from
time to time pursuant to Section 2.07.
"Consolidated EBIT" means, for any fiscal period,
Consolidated Net Income for such period plus, to the extent
deducted in determining Consolidated Net Income for such
period, the aggregate amount of (i) Consolidated Interest
Charges and (ii) provision for income taxes.
"Consolidated Interest Charges" means, for any fiscal
period, the aggregate amount of interest charges, whether
expensed or capitalized, incurred or accrued by the Borrower
and its Consolidated Subsidiaries during such period.
"Consolidated Net Income" means the consolidated net
income of the Borrower and its Consolidated Subsidiaries,
determined in accordance with GAAP, excluding
(A) the proceeds of any life insurance policy to the
extent, if any, that such proceeds have been included in
consolidated net income,
(B) after-tax gains arising from (1) the sale or other
disposition of any assets (other than sales in the Ordinary
Course of Business) to the extent that the aggregate amount
of the gain exceeds the aggregate amount of losses from the
sale, abandonment or other disposition of assets (other than
sales in the Ordinary Course of Business), (2) any write-up
of assets to the extent, if any, such write-up has been
included in consolidated net income, or (3) the acquisition
of outstanding Debt securities of the Borrower or any
Subsidiary,
(C) any amount representing any interest in the
undistributed earnings of any other Person (other than a
Subsidiary),
(D) any earnings, prior the date of acquisition, of
any Person acquired in any manner, and any earnings of any
Subsidiary accrued prior to becoming a Subsidiary, to the
extent, if any, that any such earnings have been included in
consolidated net income,
(E) any earnings of a successor to or transferee
of the assets of the Borrower prior to becoming such
successor or transferee, to the extent, if any, that any
such earnings have been included in consolidated net income,
(F) any deferred credit (or amortization of a deferred
credit) arising from the creation of the negative goodwill
pursuant to the acquisition of any Person, and
(G) any portion of the net income of any Subsidiary
which for any reason is unavailable for payment of
dividends.
"Consolidated Net Worth" means Consolidated
Shareholders' Equity minus the aggregate net book value of
the following to the extent, if any, that such items were
included in consolidated assets or deducted from
consolidated liabilities in computing Consolidated
Shareholders' Equity:
(A) the amount (if any) by which the sum of
(1) the aggregate amount of Investments described in
subsection (C) of the definition of Restricted Investments
plus
(2) other Restricted Investments made after May 1,
1994, exceeds $10,000,000, and
(B) any write-up of assets (other than current assets
and other than any write-up arising from the acquisition of
any Person in the Ordinary Course of Business) made after
May 1, 1994.
"Consolidated Shareholders' Equity" means the
consolidated total shareholders' equity (including capital
stock, additional paid-in capital, retained earnings and any
accumulated translation adjustment as reduced by treasury
stock) in the Borrower and its Consolidated Subsidiaries,
determined in accordance with GAAP.
"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which would be
consolidated with those of the Borrower in its consolidated
financial statements if such statements were prepared as of
such date.
"Debt" means all obligations for borrowed money,
including (A) any obligation owed for all or any part of the
purchase price of property or other assets or for services
or for the cost of property or other assets constructed or
of improvements thereto, other than trade accounts payable
included in current liabilities and incurred in respect of
property or services purchased in the ordinary course of
business that are not more than 90 days overdue, (B) any
Capital Lease Obligation, (C) any obligation (whether fixed
or contingent) to reimburse any bank or other Person in
respect of amounts paid or payable under a standby letter of
credit and (D) any Guarantee with respect to Debt (of the
kind otherwise described in this definition) of another
Person.
"Default" means any condition or event which
constitutes an Event of Default or which with the giving of
notice or lapse of time or both would, unless cured or
waived, become an Event of Default.
"Derivatives Obligations" of any Person means all
obligations of such Person in respect of any rate swap
transaction, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity
or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any
other similar transaction (including any option with respect
to any of the foregoing transactions) or any combination of
the foregoing transactions.
"Designated Business" means the College Publishing
Segment or the Scientific and Technical Publishing Segment.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in New York
City are authorized by law to close.
"Domestic Lending Office" means, as to each Bank, its office
located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative
Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic
Lending Office by notice to the Borrower and the Agent;
provided that any Bank may so designate separate Domestic
Lending Offices for its Base Rate Loans, on the one
hand, and its CD Loans, on the other hand, in which case all
references herein to the Domestic Lending Office of such
Bank shall be deemed to refer to either or both of such
offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or
both.
"Domestic Reserve Percentage" has the meaning set forth
in Section 2.05(b).
"EBIT/TD Ratio" means at any date the ratio (expressed
as a percentage) of (i) Consolidated EBIT for the four
consecutive fiscal quarters of the Borrower and its
Consolidated Subsidiaries ending on such date to (ii) Total
Debt at such date.
"Effective Date" means the date this Agreement becomes
effective in accordance with Section 3.01.
"Environmental Laws" means any and all federal, state,
local and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions,
grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to
emissions, discharges or releases of pollutants,
contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes into the
environment including, without limitation, ambient air,
surface water, ground water, or land, or otherwise relating
to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products,
chemicals or industrial, toxic or hazardous substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Group" means the Borrower, any Subsidiary and
all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section
414 of the Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business
Day on which commercial banks are open for international
business (including dealings in dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank,
ts office, branch or affiliate located at its address set
forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Euro-Dollar Lending
Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar
Lending Office by notice to the Borrower and the Agent.
"Euro-Dollar Loan" means a Loan to be made by a Bank as a
Euro-Dollar Loan pursuant to the applicable Notice of
Borrowing.
"Euro-Dollar Reserve Percentage" has the meaning set forth
in Section 2.05(c).
"Event of Default" has the meaning set forth in Section
6.01.
"Federal Funds Rate" means, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100th
of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New
York on the Domestic Business Day next succeeding such day,
provided that (i) if such day is not a Domestic Business
Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Domestic Business
Day as so published on the next succeeding Domestic Business
Day, and (ii) if no such rate is so published on such next
succeeding Domestic Business Day, the Federal Funds Rate for
such day shall be the average rate quoted to Morgan Guaranty
Trust Company of New York on such day on such transactions
as determined by the Agent.
"Fixed Rate Borrowing" means a CD Borrowing or a Euro
Dollar Borrowing.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans
or both.
"GAAP" means generally accepted accounting principles
as in effect at the time of application to the provisions
hereof.
"Guarantee" means any guarantee or other contingent
liability (other than any endorsement for collection or
deposit in the ordinary course of business), direct or
indirect, with respect to any obligation of another Person,
through an agreement or otherwise, including, without
limitation, (A) any other endorsement or discount with
recourse or undertaking substantially equivalent to or
having economic effect similar to a guarantee in respect of
any such obligation and (B) any agreement (1) to purchase,
or to advance or supply funds for the payment or purchase
of, any such obligation, (2) to purchase, sell or lease
property, products, materials or supplies, or transportation
or services, in respect of enabling such other Person to pay
any such obligation or to assure the owner thereof against
loss regardless of the delivery or nondelivery of the
property, products, materials or supplies or transportation
or services or (3) to make any loan, advance or capital
contribution to or other investment in, or to otherwise
provide funds to or for, such other Person in respect of
enabling such Person to satisfy any obligation (including
any liability for a dividend, stock liquidation payment or
expense) or to assure a minimum equity, working capital or
other balance sheet condition in respect of any such
obligation.
The amount of any Guarantee shall be equal to the
outstanding amount of the obligation directly or indirectly
guaranteed.
"Interest Period" means: (1) with respect to each Euro
Dollar Borrowing, the period commencing on the date of such
Borrowing and ending one, two, three or six months
thereafter, as the Borrower may elect in the applicable
Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end on a
day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day
unless such Euro-Dollar Business Day falls in another
calendar month, in which case such Interest Period shall end
on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-
Dollar Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall,
subject to clause (c) below, end on the last EuroDollar
Business Day of a calendar month; and
(c) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
(2) with respect to each CD Borrowing, the period
commencing on the date of such Borrowing and ending 30, 60,
90 or 180 days thereafter, as the Borrower may elect in the
applicable Notice of Borrowing; provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b) below) which would
otherwise end on a day which is not a EuroDollar Business
Day shall be extended to the next succeeding Euro-Dollar
Business Day; and
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
(3) with respect to each Base Rate Borrowing, the
period commencing on the date of such Borrowing and ending
30 days thereafter; provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b) below) which would
otherwise end on a day which is not a EuroDollar Business
Day shall be extended to the next succeeding Euro-Dollar
Business Day; and
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
"Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended, or any successor statute.
"Investment" means any investment so classified under
GAAP, made by stock purchase, capital contribution, loan or
advance or by purchase of property or otherwise, but in any
event shall include as an investment in any Person the
amount of all Debt owed by such Person and all accounts
receivable from such Person which are not current assets or
did not arise from sales to such Person in the ordinary
course of business.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of
any kind in respect of such asset. For the purposes of this
Agreement, the Borrower or any Subsidiary shall be deemed to
own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under
any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan" means a Domestic Loan or a Euro-Dollar Loan and
"Loans" means Domestic Loans or Euro-Dollar Loans or both.
"London Interbank Offered Rate" has the meaning set
forth in Section 2.05(c).
"Material Debt" means Debt (other than the Notes) of
the Borrower and/or one or more of its Subsidiaries, arising
in one or more related or unrelated transactions, in an
aggregate principal amount exceeding $1,000,000.
"Material Financial Obligations" means a principal or
face amount of Debt and/or payment or collateralization
obligations in respect of Derivatives Obligations of the
Borrower and/or one or more of its Subsidiaries, arising in
one or more related or unrelated transactions, exceeding in
the aggregate $1,000,000.
"Material Plan" means at any time a Plan or Plans
having aggregate Unfunded Liabilities in excess of
$10,000,000.
"Morgan" means Morgan Guaranty Trust Company of New
York; provided that, when used in Section 2.05 or 8.01 with
reference to any Euro-Dollar Loan, the term "Morgan" shall
mean the principal London office of Morgan Guaranty Trust
Company of New York.
"1992 Credit Agreement" means the Credit Agreement
dated as of March 30, 1992, as amended, among the Borrower,
the banks listed on the signature pages thereof and Morgan
Guaranty Trust Company of New York, as agent.
"Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing
the obligation of the Borrower to repay the Loans, and
"Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" has the meaning set forth in Section 2.02.
"Operating Lease" means any lease, other than a Capital
Lease, of real or personal property; and "Operating Lease
Rentals" means the sum of the rental and other obligations
required to be paid by the lessees under an Operating Lease
excluding any amount required to be paid by the Lessee
(whether or not therein designated as rental or additional
rental) on account of maintenance, repairs, insurance,
taxes, assessments, water rates and similar charges.
"Ordinary Course of Business" means the activities,
events and transactions of the Borrower that would
reasonably be expected to recur in the foreseeable future,
do not possess a high degree of abnormality and are not
unrelated to, or only incidentally related to, the
publishing and marketing of books, journals and information
services in all formats and computer software related
thereto; the importing, adapting and marketing of works from
other publishers and the designing and marketing of teaching
and training materials for business and professional users.
For purposes of this Agreement, sales, directly or
indirectly, of book lists, publishing or training product
lines, or other similar forms of publication rights
(excluding sales in one transaction or a series of related
transactions of all or substantially all of any Designated
Business) shall be deemed to be sales in the Ordinary Course
of Business.
"Parent" means, with respect to any Bank, any Person
controlling such Bank.
"Participant" has the meaning set forth in Section
9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation
or any entity succeeding to any or all of its functions
under ERISA.
"Person" means an individual, a corporation, a
partnership, an association, a trust or any other entity or
organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit
plan (other than a Multiemployer Plan) which is covered by
Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member
of the ERISA Group for employees of any member of the ERISA
Group or (ii) has at any time within the preceding five
years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for
employees of any Person which was at such time a member of
the ERISA Group.
"Prime Rate" means the rate of interest publicly
announced by Morgan Guaranty Trust Company of New York in
New York City from time to time as its Prime Rate.
"Refunding Borrowing" means a Borrowing which, after
application of the proceeds thereof, results in no net
increase in the outstanding principal amount of Loans made
by any Bank.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from
time to time.
"Required Banks" means at any time Banks having at
least 66 2/3% of the aggregate amount of the Commitments or,
if the Commitments shall have been terminated, holding Notes
evidencing at least 66 2/3% of the aggregate unpaid
principal amount of the Loans.
"Restricted Guarantee" means any Guarantee of the
Borrower or a Subsidiary in respect of any obligation of
another Person other than
(A) any Guarantee of the Borrower in respect of any
Subsidiary, and
(B) any Guarantee in respect of Debt to the extent such
Debt is secured by a Capital Lease of the Borrower or a Subsidiary.
"Restricted Investment" means any Investment, other
than
(A) any Investment in (1) a marketable obligation,
maturing within one year after acquisition thereof, issued
or guaranteed by the United States of America or an
instrumentality or agency thereof, (2) a certificate of
deposit or other obligation, maturing within one year after
acquisition thereof, issued by a United States national or
state bank or trust company having capital, surplus and
undivided profits of at least $100,000,000, (3) open market
commercial paper, maturing within 270 days after acquisition
thereof, which has the highest credit rating of either
Standard & Poor's Corporation ("S&P") or Moody's Investors
Service, Inc. ("Moody's"), (4) adjustable rate preferred
stocks or money market preferred stocks issued by a
corporation organized under the laws of the United States or
a state thereof which have one of the two highest ratings of
either S&P or Moody's and which mature (or are redeemable at
the option of the holder) within twelve months after the
acquisition thereof and (5) commercial paper or notes issued
by a governmental authority located in the United States,
which are of credit quality not lower than that of the
investments referred to in clause (4) above and which mature
(or are redeemable at the option of the holder) within
twelve months after the acquisition thereof,
(B) any Investment in a Subsidiary, and
(C) any Investment hereafter acquired in exchange for,
or out of the net cash proceeds from the substantially
concurrent sale of, common shares of the Borrower.
In computing the amount of any Restricted Investment in any
Person, unrealized increases or decreases in value, or write
ups, write-downs or write-offs of Restricted Investments in
the Person shall be disregarded (except to the extent
included in the determination of net income of the Borrower
or a Subsidiary).
"Restricted Payment" means
(A) the declaration of any dividend on, or the
incurrence of any liability to make any other payment or
distribution in respect of, any shares of the Borrower
(other than one payable solely in its common shares), and
(B) any payment or distribution on account of the
purchase, redemption or other retirement of any shares of
the Borrower, or of any warrant, option or other right to
acquire such shares, or any other payment or distribution
(other than pursuant to a dividend theretofore declared or
liability theretofore incurred as specified in Subsection
(A)), made in respect thereof, either directly or
indirectly, except any payment or distribution on account of
(1) the principal of and prepayment charge, if any, on
convertible Debt, or (2) the purchase, redemption or other
retirement of shares of the Borrower in exchange for, or out
of the net cash proceeds received by the Borrower from a
substantially concurrent sale of, other shares of the Borrower.
The amount of the any Restricted Payment in property shall
be deemed to be the greater of its fair value (as determined
by the Board) or its net book value.
"Revolving Credit Period" means the period from and
including the Effective Date to but not including the
Termination Date.
"Scientific and Technical Publishing Segment" means
that portion of the business of the Borrower and its
Subsidiaries attributable to technical and scientific
publications.
"Subsidiary" of any designated Person means any Person
or other entity at least a majority of the Voting Stock (or
comparable ownership interests) of which is at the time
owned by the designated Person and/or one or more of its
Subsidiaries. Except as otherwise expressly indicated
herein, references to Subsidiaries shall mean Subsidiaries
of the Borrower.
"Subsidiary Debt" means the Debt of all Subsidiaries of
the Borrower, consolidated in accordance with GAAP.
"Termination Date" means March 30, 2000, or, if any
such day is not a Euro-Dollar Business Day, the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case
the Termination Date shall be the next preceding Euro-Dollar
Business Day.
"Total Debt" means at any date the aggregate amount of
Debt of the Borrower and its Consolidated Subsidiaries,
determined on a consolidated basis as of such date.
"Unfunded Liabilities" means, with respect to any Plan
at any time, the amount (if any) by which (i) the present
value of all benefits under such Plan exceeds
(ii) the fair market value of all Plan assets allocable to
such benefits (excluding any accrued but unpaid
contributions), all determined as of the then most recent
valuation date for such Plan, but only to the extent that
such excess represents a potential liability of a member of
the ERISA Group to the PBGC or any other Person under Title
IV of ERISA.
"Voting Stock" means shares of a Person of the class or
classes having general voting power (not depending on the
happening of a contingency) under ordinary circumstances to
elect a majority of the Board. As of the date of this
Agreement, the Class B Stock is the Voting Stock of the
Borrower.
SECTION 1.02. Accounting Terms and Determinations. All
financial statements provided for in this Agreement shall be
prepared, all financial computations hereunder shall be
made, and all accounting terms shall have the meanings given
to them, in accordance with GAAP, except as otherwise
provided in this Agreement. Any consolidated or
consolidating financial statement or financial
computation with respect to the Borrower and its
Subsidiaries required by this Agreement shall be done in
accordance with GAAP, and if at the time that any such
statement or computation is required to be made the Borrower
shall not have any Subsidiary such terms shall mean a
financial statement or a financial computation, as the case
may be, with respect to the Borrower only.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. During the
Revolving Credit Period each Bank severally agrees, on the
terms and conditions set forth in this Agreement, to lend to
the Borrower from time to time amounts not to exceed in the
aggregate at any one time outstanding the amount of its
Commitment. Each Borrowing under this Section 2.01 shall be
in an aggregate principal amount of $2,000,000 or any larger
multiple of $1,000,000 (except that any such Borrowing may
be in the aggregate amount of the unused Commitments) and
shall be made from the several Banks ratably in proportion
to their respective Commitments. Within the foregoing
limits, the Borrower may borrow under this Section 2.01,
repay, or to the extent permitted by Section 2.09, prepay
Loans and reborrow at any time during the Revolving Credit
Period under this Section 2.01.
SECTION 2.02. Method of Borrowing. (a) The
Borrower shall give the Agent notice (a "Notice of
Borrowing") not later than 10:30 A.M. (New York City time)
on (i) the second Domestic Business Day before each CD
Borrowing, (ii) the date of each Base Rate Borrowing, and
(iii) the third Euro-Dollar Business Day before each Euro
Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall
be a Domestic Business Day in the case of a
Domestic Borrowing or a Euro-Dollar Business Day
in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii)
whether the Loans comprising such Borrowing are
to be CD Loans, Base Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Fixed Rate Borrowing, the
duration of the Interest Period applicable thereto, subject
to the provisions of the definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the
Agent shall promptly notify each Bank of the contents
thereof and of such Bank's ratable share of such Borrowing
and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(c) Not later than 12:00 noon (New York City
time) on the date of each Borrowing, each Bank shall (except
as provided in subsection (d) of this Section) make
available its ratable share of such Borrowing (determined in
accordance with Section 2.01), in Federal or other funds
immediately available in New York City, to the Agent at its
address specified in or pursuant to Section 9.01. Unless
the Agent determines in its reasonable judgment that any
applicable condition specified in Article III has not been
satisfied, the Agent will make the funds so received from
the Banks available to the Borrower at the Agent's aforesaid
address.
(d) If any Bank makes a new Loan hereunder on a day on
which the Borrower is to repay all or any part of an
outstanding Loan from such Bank, such Bank shall apply the
proceeds of its new Loan to make such repayment and only an
amount equal to the difference (if any) between the amount
being borrowed and the amount being repaid shall be made
available by such Bank to the Agent as provided in
subsection (c) of this Section, or remitted by the Borrower
to the Agent as provided in Section 2.10, as the case may
be.
(e) Unless the Agent shall have received notice from a
Bank prior to the date of any Borrowing that such Bank will
not make available to the Agent such Bank's share of such
Borrowing, the Agent may assume that such Bank has made such
share available to the Agent on the date of such Borrowing
in accordance with subsections (c) and (d) of this Section
2.02 and the Agent may, in reliance upon such assumption,
make available to the Borrower on such date a corresponding
amount. If and to the extent that such Bank shall not have
so made such share available to the Agent, such Bank and the
Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest
thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, a
rate per annum equal to the higher of the Federal Funds Rate
and the interest rate applicable thereto pursuant to Section
2.05 and (ii) in the case of such Bank, the Federal Funds
Rate. If such Bank shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute
such Bank's Loan included in such Borrowing for purposes of
this Agreement.
SECTION 2.03. Notes. (a) The Loans of each Bank
shall be evidenced by a single Note payable to the order of
such Bank for the account of its Applicable Lending Office
in an amount equal to the aggregate unpaid principal amount
of such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and the
Agent, request that its Loans of a particular type be
evidenced by a separate Note in an amount equal to the
aggregate unpaid principal amount of such Loans. Each such
Note shall be in substantially the form of Exhibit A hereto
with appropriate modifications to reflect the fact that it
evidences solely Loans of the relevant type. Each reference
in this Agreement to the "Note" of such Bank shall be deemed
to refer to and include any or all of such Notes, as the
context may require.
(c) Upon receipt of each Bank's Note pursuant to
Section 3.01(b), the Agent shall forward such Note to such
Bank. Each Bank shall record the date, amount, type and
maturity of each Loan made by it and the date and amount of
each payment of principal made by the Borrower with respect
thereto, and may, if such Bank so elects in connection with
any transfer or enforcement of its Note, endorse on the
schedule forming a part thereof appropriate notations to
evidence the foregoing information with respect to each such
Loan then outstanding; provided that the failure of any Bank
to make any such recordation or endorsement shall not affect
the obligations of the Borrower hereunder or under the
Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Note and to attach to and make a
part of its Note a continuation of any such schedule as and
when required.
SECTION 2.04. Maturity of Loans. Each Loan included
in any Borrowing shall mature, and the principal amount
thereof shall be due and payable, on the last day of the
Interest Period applicable to such Borrowing and on the
Termination Date.
SECTION 2.05. Interest Rates. (a) Each Base Rate
Loan shall bear interest on the outstanding principal amount
thereof, for each day from the date such Loan is made until
it becomes due, at a rate per annum equal to the Base Rate
for such day. Such interest shall be payable for each
Interest Period on the last day thereof. Any overdue
principal of and overdue interest on any Base Rate Loan
shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 1% plus the
Base Rate for such day.
(b) Each CD Loan shall bear interest on the
outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the
sum of the Applicable Margin plus the applicable Adjusted CD
Rate; provided that if any CD Loan shall, as a result of
clause (2)(b) of the definition of Interest Period, have an
Interest Period of less than 30 days, such CD Loan shall
bear interest during such Interest Period at the rate
applicable to Base Rate Loans during such period. Such
interest shall be payable for each Interest Period on the
last day thereof and, if such Interest Period is longer than
90 days, at intervals of 90 days after the first day
thereof. Any overdue principal of and overdue interest on
any CD Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the sum of 1%
plus the higher of (i) the sum of the Applicable Margin plus
the Adjusted CD Rate applicable to such Loan and (ii) the
Base Rate for such day.
The "Adjusted CD Rate" applicable to any Interest
Period means a rate per annum determined pursuant to the
following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
__________
* The amount in brackets being rounded upwards, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is
the rate of interest determined by the Agent to be the
prevailing rate per annum bid at 10:00 A.M. (New York City
time) (or as soon thereafter as practicable) on the first
day of such Interest Period by two or more New York
certificate of deposit dealers of recognized standing for
the purchase at face value from Morgan of its certificates
of deposit in an amount comparable to the unpaid principal
amount of the CD Loan of Morgan to which such Interest
Period applies and having a maturity comparable to such
Interest Period.
"Domestic Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including without
limitation any basic, supplemental or emergency reserves)
for a member bank of the Federal Reserve System in New York
City with deposits exceeding five billion dollars in respect
of new non-personal time deposits in dollars in New York
City having a maturity comparable to the related Interest
Period and in an amount of $100,000 or more. The Adjusted
CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Domestic Reserve
Percentage.
"Assessment Rate" means for any day the annual
assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund classified as adequately
capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within
the meaning of 12 C.F.R. 327.3(e) (or any successor
provision) to the Federal Deposit Insurance Corporation (or
any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the
United States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change
in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the
sum of the Applicable Margin plus the applicable Adjusted
London Interbank Offered Rate. Such interest shall be
payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable
to any Interest Period means a rate per annum equal to the
quotient obtained (rounded upwards, if necessary, to the
next higher 1/100 of 1%) by dividing
(i) the applicable London Interbank Offered Rate by
(ii) 1.00 minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any
Interest Period means the rate per annum at which deposits
in dollars are offered to Morgan in the London interbank
market at approximately 11:00 A.M. (London time) two Euro
Dollar Business Days before the first day of such Interest
Period in an amount approximately equal to the principal
amount of the Euro-Dollar Loan of Morgan to which such
Interest Period is to apply and for a period of time
comparable to such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining
the maximum reserve requirement for a member bank of the
Federal Reserve System in New York City with deposits
exceeding five billion dollars in respect of "Eurocurrency
liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which
the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which
includes loans by a non-United States office of any Bank to
United States residents). The Adjusted London Interbank
Offered Rate shall be adjusted automatically on and as of
the effective date of any change in the Euro-Dollar Reserve
Percentage.
(d) Any overdue principal of and overdue interest on
any Euro-Dollar Loan shall bear interest, payable on demand,
for each day from and including the date payment thereof was
due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 1% plus the higher of (i) the
sum of the Applicable Margin plus the Adjusted London
Interbank Offered Rate applicable to such Loan and (ii) the
Applicable Margin plus the quotient obtained (rounded
upwards, if necessary, to the next higher 1/100 of 1%) by
dividing (x) the rate per annum at which one day (or, if
such amount due remains unpaid more than three Euro-Dollar
Business Days, then for such other period of time not longer
than six months as the Agent may select) deposits in dollars
in an amount approximately equal to such overdue payment due
to Morgan are offered to Morgan in the London interbank
market for the applicable period determined as provided
above by (y) 1.00 minus the Euro-Dollar Reserve Percentage
(or, if the circumstances described in clause (a) or (b) of
Section 8.01 shall exist, at a rate per annum equal to the
sum of 1% plus the Base Rate for such day).
(e) The "Applicable Margin" for each Fixed Rate Loan
outstanding on any day during any fiscal quarter of the
Borrower is (i) for each day during any fiscal quarter as to
which the EBIT/TD Ratio for the then immediately preceding
four consecutive fiscal quarters was greater than 75%, the
applicable amount set forth in the table below under the
caption Level I, (ii) for each day during any fiscal quarter
as to which the EBIT/TD Ratio for the then immediately
preceding four consecutive fiscal quarters was equal to or
less than 75% but greater than 40%, the applicable amount
set forth in the table below under the caption Level II, and
(iii) for each day during any fiscal quarter as to which the
EBIT/TD Ratio for the then immediately preceding four
consecutive fiscal quarters was equal to or less than 40%,
the applicable amount set forth in the table below under the
caption Level III.
Level I Level II Level III
Euro-Dollar Loans 0.25% 0.35% 0.5% CD
Loans 0.375% 0.475% 0.675%
For purposes of making interest payments hereunder, the
Applicable Margin for Fixed Rate Loans of any type shall
change only upon delivery of an officer's certificate
pursuant to Section 5.01(e)(iii) setting forth the EBIT/TD
Ratio on the basis of which a change is required pursuant to
this subsection (e). Such change, however, will be
retroactively effective to the first day of the relevant
fiscal quarter, and an appropriate adjustment shall be made
within three Domestic Business Days after the delivery of
such certificate for any resulting change in the amount of
interest accrued from such first day and previously paid.
(f) The Agent shall determine each interest rate
applicable to the Loans hereunder. The Agent shall give
prompt notice to the Borrower and the Banks of each rate of
interest so determined, and its determination thereof shall
be conclusive in the absence of manifest error.
SECTION 2.06. Facility Fees. During the Revolving
Credit Period, the Borrower shall pay to the Agent, for the
account of the Banks ratably in accordance with their
respective Commitments, a facility fee for each day at a
rate per annum equal to (i) 0.125% for any day on which
Level I (as such term is used in Section 2.05) applies, (ii)
0.175% for any day on which Level II (as such term is used
in Section 2.05) applies, and (iii) 0.25% for any day on
which Level III (as such term is used in Section 2.05)
applies, on the aggregate amount of the Commitments (whether
used or unused) on such day. Such facility fees shall
accrue for each day from and including the Effective Date to
but excluding the Termination Date (or earlier date of
termination of the Commitments in their entirety). Accrued
fees under this Section shall be payable quarterly in
arrears on each March 31, June 30, September 30 and December
31 during the Revolving Credit Period and on the Termination
Date (or earlier date of termination of the Commitments in
their entirety).
SECTION 2.07. Optional Termination or Reduction of
Commitments. During the Revolving Credit Period, the
Borrower may, upon at least three Domestic Business Days'
notice to the Agent, terminate at any time, or
proportionately reduce from time to time by an aggregate
amount of $1,000,000 or any larger multiple of $1,000,000,
the unused portions of the Commitments. If the Commitments
are terminated in their entirety, all accrued fees shall be
payable on the effective date of such termination.
SECTION 2.08. Mandatory Termination of Commitments.
The Commitments shall terminate on the Termination Date and
any Loans then outstanding (together with accrued interest
thereon) shall be due and payable on such date.
SECTION 2.09. Optional Prepayments. (a) The Borrower
may, upon at least one Domestic Business Day's notice to the
Agent, prepay any Base Rate Borrowing in whole at any time,
or from time to time in part in amounts aggregating
$1,000,000 or any larger multiple of $1,000,000, by paying
the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the
Loans of the several Banks included in such Borrowing.
(b) Except as provided in Section 8.02, the Borrower
may not prepay all or any portion of the principal amount of
any Fixed Rate Loan prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment
pursuant to this Section, the Agent shall promptly notify
each Bank of the contents thereof and of such Bank's ratable
share of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.10. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of,
and interest on, the Loans and of facility fees hereunder,
not later than 12:00 noon (New York City time) on the date
when due, in Federal or other funds immediately available in
New York City, to the Agent at its address referred to in
Section 9.01. The Agent will promptly distribute to each
Bank its ratable share of each such payment received by the
Agent for the account of the Banks. Whenever any payment of
principal of, or interest on, the Domestic Loans or of
facility fees shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended
to the next succeeding Domestic Business Day. Whenever any
payment of principal of, or interest on, the Euro-Dollar
Loans shall be due on a day which is not a Euro-Dollar
Business Day, the date for payment thereof shall be extended
to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in
which case the date for payment thereof shall be the next
preceding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or
otherwise, interest thereon shall be payable for such
extended time.
(b) Unless the Agent shall have received notice from
the Borrower prior to the date on which any payment is due
to the Banks hereunder that the Borrower will not make such
payment in full, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to
the amount then due such Bank. If and to the extent that
the Borrower shall not have so made such payment, each Bank
shall repay to the Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for
each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.11. Funding Losses. If the Borrower makes
any payment of principal with respect to any Fixed Rate Loan
(pursuant to Article VI or VIII or otherwise) on any day
other than the last day of the Interest Period applicable
thereto, or the end of an applicable period fixed pursuant
to Section 2.05(d), or if the Borrower fails to borrow any
Fixed Rate Loans after notice has been given to any Bank in
accordance with Section 2.02(b), the Borrower shall
reimburse each Bank within 15 days after demand for any
resulting loss or expense incurred by it (or by an existing
or prospective Participant in the related Loan), including
(without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but
excluding loss of margin for the period after any such
payment or failure to borrow, provided that such Bank shall
have delivered to the Borrower a certificate as to the
amount of such loss or expense, which certificate shall be
conclusive in the absence of manifest error.
SECTION 2.12. Computation of Interest and Fees.
Interest based on the Prime Rate hereunder and facility fees
shall be computed on the basis of a year of 365 days (or 366
days in a leap year) and paid for the actual number of days
elapsed (including the first day but excluding the last
day). All other interest shall be computed on the basis of
a year of 360 days and paid for the actual number of days
elapsed (including the first day but excluding the last
day).
SECTION 2.13. Withholding Tax Exemption. At least
five Domestic Business Days prior to the first date on which
interest or fees are payable hereunder for the account of
any Bank, each Bank that is not incorporated under the laws
of the United States of America or a state thereof agrees
that it will deliver to each of the Borrower and the Agent
two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, certifying in either case that
such Bank is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of
any United States federal income taxes. Each Bank which so
delivers a Form 1001 or 4224 further undertakes to deliver
to each of the Borrower and the Agent two additional copies
of such form (or a successor form) on or before the date
that such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most
recent form so delivered by it, and such amendments thereto
or extensions or renewals thereof as may be reasonably
requested by the Borrower or the Agent, in each case
certifying that such Bank is entitled to receive payments
under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes,
unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on
which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent
such Bank from duly completing and delivering any such form
with respect to it and such Bank advises the Borrower and
the Agent that it is not capable of receiving payments
without any deduction or withholding of United States
federal income tax.
SECTION 2.14. Change of Control. If a Change of
Control shall occur (i) the Borrower will, promptly and in
any event within 20 days after the occurrence thereof, give
each Bank notice thereof and shall describe in reasonable
detail the facts and circumstances giving rise thereto and
(ii) each Bank may, by notice to the Borrower and the Agent
given not later than 20 days after such notice of Change of
Control shall have been given, terminate its Commitment,
which shall be terminated 45 days after such notice of
Change of Control shall have been given, and declare the
Note held by it, together with accrued interest thereon, and
any other amounts payable hereunder for its account to be,
and such Note and such other amounts shall thereupon become,
due and payable on such forty-fifth day without presentment,
demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower; provided that no Bank
shall be obligated, without its written consent given at the
time, to make a Loan to be included in any Borrowing other
than a Refunding Borrowing during the period from and
including the date of any such Change of Control to and
including the forty-fifth day following such notice of
Change of Control.
For the purposes of this Section, the following terms
have the following meanings:
"Acquiring Person" means any Person
(excluding any trustee of any stock participation plan or
pension plan of the Borrower or any Subsidiary so long as
all such plans in the aggregate hold less than 20% of the
Voting Stock of the Borrower), who along with any Affiliates
or Associates of such Person, becomes the beneficial
owner (within the meaning of Rule 13d-3 of the Securities
Exchange Act of 1934, as amended), directly or indirectly,
of more than 10% of the Voting Stock of the Borrower.
"Affiliate" of any designated Person means any Person
that has a relationship with the designated Person whereby
either of such Persons directly or indirectly controls or is
controlled by or is under
common control with the other, or holds or beneficially owns
5% or more of the equity interest in the other or 5% or more
of any class of voting securities of the other. For this
purpose "control" means the power, direct or indirect, of
one Person to direct or cause direction of the management
and policies of another, whether by contract, through voting
securities or otherwise.
"Associate" means, with respect to any
Person, (1) any corporation or organization (other than the
Borrower or a Subsidiary of the Borrower) of which such
Person is an officer, employee or partner or is, directly or
indirectly, the beneficial owner of 10% or more of the
shares of any class, (2) any trust or other estate in which
such Person has a substantial beneficial interest or as to
which such Person serves as trustee or in a similar
fiduciary capacity, and (3) any relative or spouse of such
Person, or any relative of such spouse, who has the same
home as such Person or who is a director or officer of the
Borrower or any of its Subsidiaries.
"Change in Control" of the Borrower shall be deemed to
have occurred at such time or times as (1) any Person (other
than W. Bradford Wiley, Deborah E. Wiley, Peter Booth Wiley
and William Bradford Wiley II, their Affiliates or
Associates) alone or with any Affiliates or Associates of
such Person, is or becomes the beneficial owner, directly or
indirectly, of 50% or more of the Voting Stock of the
Borrower or (2) individuals who constitute the Continuing
Directors cease for any reason to constitute at least a
majority of the Board.
"Continuing Director" means any member of the Board who
is not an Affiliate or Associate of an Acquiring Person and
who was a member of the Board immediately prior to the time
that any Acquiring Person became an Acquiring Person and any
other director who is not an Affiliate or Associate of an
Acquiring Person and who is recommended to succeed a
Continuing Director by a majority of Continuing Directors
who are then members of the Board.
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness. This Agreement shall
become effective on the date that each of the
following conditions shall have been satisfied (or waived in
accordance with Section 9.05):
(a) receipt by the Agent of counterparts hereof signed
by each of the parties hereto (or, in the case of any party
as to which an executed counterpart shall not have been
received, receipt by the Agent in form satisfactory to it of
telegraphic, telex, facsimile or other written confirmation
from such party of execution of a counterpart hereof by such
party);
(b) receipt by the Agent for the account of each Bank
of a duly executed Note dated on or before the Effective
Date complying with the provisions of Section 2.03;
(c) receipt by the Agent of an opinion of Richard S.
Rudick, General Counsel for the Borrower, substantially in
the form of Exhibit B hereto and covering such additional
matters relating to the transactions contemplated hereby as
the Required Banks may reasonably request;
(d) receipt by the Agent of an opinion of Davis Polk &
Wardwell, special counsel for the Agent, substantially in
the form of Exhibit C hereto and covering such additional
matters relating to the transactions contemplated hereby as
the Required Banks may reasonably request;
(e) receipt by the Agent of a certificate signed by
the Chief Financial Officer or Treasurer of the Borrower,
dated the Effective Date, to the effect set forth in clauses
(c) and (d) of Section 3.02;
(f) receipt by the Agent of all documents it may
reasonably request relating to the existence of the
Borrower, the corporate authority for and the validity of
this Agreement and the Notes, and any other matters relevant
hereto, all in form and substance satisfactory to the Agent;
and
(g) receipt by the Agent of evidence satisfactory to
it of the payment of all principal of and interest on any
loans outstanding under, and of all other amounts payable
under, the 1992 Credit Agreement;
Provided that this Agreement shall not become effective or
be binding on any party hereto unless all of the foregoing
conditions are satisfied not later than April 15, 1995. The
Agent shall promptly notify the Borrower and the Banks of
the Effective Date, and such notice shall be conclusive and
binding on all parties hereto. The Banks that are parties
to the 1992 Credit Agreement, comprising the "Required
Banks" as defined therein, and the Borrower agree that the
commitments under the 1992 Credit Agreement shall terminate
in their entirety simultaneously with and subject to the
effectiveness of this Agreement and that the Borrower shall
be obligated to pay the accrued commitment and facility fees
thereunder to but excluding the date of such effectiveness.
SECTION 3.02. Borrowings. The obligation of any Bank
to make a Loan on the occasion of any Borrowing is subject
to the satisfaction of the following conditions:
(a) receipt by the Agent of notice of such Borrowing
as required by Section 2.02;
(b) the fact that, immediately after such Borrowing,
the aggregate outstanding principal amount of the Loans will
not exceed the aggregate amount of the Commitments;
(c) the fact that, immediately before and after such
Borrowing, no Default shall have occurred and be continuing;
and
(d) the fact that the representations and warranties
of the Borrower contained in this Agreement (except, in the
case of a Refunding Borrowing, the representations and
warranties set forth in Sections 4.04(c) and 4.05 as to any
matter which has theretofore been disclosed in writing by
the Borrower to the Banks) shall be true on and as of the
date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of
such Borrowing as to the facts specified in clauses (b), (c)
and (d) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The
Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
New York, and has all corporate powers and all material
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted.
SECTION 4.02. Corporate and Governmental
Authorization; No Contravention. The execution, delivery
and performance by the Borrower of this Agreement and the
Notes are within the Borrower's corporate power, have been
duly authorized by all necessary corporate action, require
no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene,
or constitute a default under, any provision of applicable
law or regulation or of the Restated Certificate of
Incorporation or by-laws of the Borrower or of any
agreement, judgment, injunction, order, decree or other
instrument binding upon the Borrower or result in the
creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement
constitutes a valid and binding agreement of the Borrower
and each Note, when executed and delivered in accordance
with this Agreement, will constitute a valid and binding
obligation of the Borrower, in each case enforceable in
accordance with its terms.
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of April 30,
1994 and the related consolidated statements of income,
retained earnings and cash flows for the fiscal year then
ended, reported on by Arthur Andersen & Co., and set forth
in the Borrower's 1994 Form 10-K, a copy of which has been
delivered to each of the Banks, fairly present, in
conformity with GAAP, the consolidated financial position of
the Borrower and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and
changes in financial position for such fiscal year.
(b) The unaudited consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of January 31,
1995 and the related unaudited consolidated condensed
statements of income for the nine months then ended, set
forth in the Borrower's quarterly report for the fiscal
quarter ended January 31, 1995 as filed with the Securities
and Exchange Commission on Form 10-Q, a copy of which has
been delivered to each of the Banks, fairly present, in
conformity with GAAP applied on a basis consistent with the
financial statements referred to in subsection (a) of this
Section, the consolidated financial position of the Borrower
and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and changes in financial
position for such nine month period (subject to normal year
end adjustments).
(c) Since January 31, 1995 there has been no material
adverse change in the business, financial position, results
of operations or prospects of the Borrower and its
Consolidated Subsidiaries, considered as a whole.
SECTION 4.05. Litigation. There is no action, suit or
proceeding pending against, or to the knowledge of the
Borrower threatened against or affecting, the Borrower or
any of its Subsidiaries before any court or arbitrator or
any governmental body, agency or official in which there is
a reasonable possibility of an adverse decision which could
materially adversely affect the business, consolidated
financial position or consolidated results of operations of
the Borrower and its Consolidated Subsidiaries or which in
any manner draws into question the validity of this
Agreement or the Notes.
SECTION 4.06. Compliance with ERISA. Each member of
the ERISA Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue
Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions
of ERISA and the Internal Revenue Code with respect to each
Plan. No member of the ERISA Group has (i) sought a waiver
of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement,
or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security under ERISA
or the Internal Revenue Code or (iii) incurred any liability
under Title IV of ERISA other than a liability to the PBGC
for premiums under Section 4007 of ERISA.
SECTION 4.07. Taxes. United States Federal income tax
returns of the Borrower and its Subsidiaries have been
examined and closed through the fiscal year ended April 30,
1989, except for refund claims filed by the Borrower for the
fiscal years ended April 30, 1982 through April 30, 1989 and
currently under examination by the Internal Revenue Service.
The Borrower and its Subsidiaries have filed all United
States Federal income tax returns and all other material tax
returns which are required to be filed by them and have paid
all taxes due pursuant to such returns or pursuant to any
assessment received by the Borrower or any Subsidiary. The
charges, accruals and reserves on the books of the Borrower
and its Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Borrower,
adequate.
SECTION 4.08. Subsidiaries. Each of the Borrower's
corporate Subsidiaries is a corporation duly incorporated,
validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers
and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as
now conducted.
SECTION 4.09. Not an Investment Company. The Borrower
is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 4.10. Status of Notes. The obligations of the
Borrower under this Agreement and the Notes to pay the
principal of and interest on the Notes and any and all other
amounts due hereunder constitute direct unconditional and
general obligations of the Borrower and do rank and will
rank at least pari passu in priority of payment and in all
other respects with all other unsecured Indebtedness of the
Borrower now existing.
SECTION 4.11. Environmental Matters. The Borrower has
reasonably concluded that Environmental Laws are unlikely to
have a material adverse effect on the business, financial
condition, results of operations or prospects of the
Borrower and its Subsidiaries, considered as a whole.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any
Commitment hereunder or any amount payable under any Note
remains unpaid:
SECTION 5.01. Information. The Borrower will deliver
to each of the Banks:
(a) as soon as available and in any event within 90
days after the end of each fiscal year,
a consolidated and consolidating balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of
such fiscal year and the related consolidated and
consolidating statements of income, retained earnings and
cash flows for such year, setting forth in each case in
comparative form the figures for the previous fiscal year,
prepared in accordance with generally accepted accounting
principles consistently applied and, in the case of the
consolidated statements, reported
on by Arthur Andersen & Co. or other independent public
accountants of nationally recognized standing, which report
shall contain no material exceptions or qualifications
except such as are not unacceptable to the Banks;
(b) as soon as available and in any event within 45
days after the end of each of the first three quarters of
each fiscal year, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of
such fiscal quarter and the related consolidated statements
of income for such quarter and for the portion of the fiscal
year ended on the last day of such quarter, and of cash
flows for the portion of the fiscal year ended on the last
day of such quarter, setting forth in each case in
comparative form the figures for the corresponding quarter
of the previous fiscal year and the corresponding portion of
the previous fiscal year, prepared in accordance with
generally accepted accounting principles consistently
applied;
(c) promptly upon the filing thereof, copies of all
registration statements (excluding registration statements
on Form S-8 or any successor form) and regular and periodic
reports filed by the Borrower with the Securities and
Exchange Commission (or any governmental agency succeeding
to the functions of said Commission) or with any stock
exchange on which the Borrower's securities are traded;
(d) promptly upon the mailing thereof to the
shareholders of the Borrower, copies of all financial
statements, reports and proxy statements which the Borrower
shall have sent to its shareholders;
(e) simultaneously with each delivery of the financial
statements referred to in subsections (a) and (b) above, a
certificate dated the date of such delivery and signed by
the Treasurer or Chief Financial Officer of the Borrower (i)
stating that such financial statements have been prepared in
conformity with generally accepted accounting principles
applied on a basis which, except as disclosed therein, is
consistent with the preceding year, or the corresponding
portion of the preceding year (subject in the case of
financial statements delivered pursuant to subsection (b)
above, to normal year-end adjustments of which none shall be
material), (ii) stating whether there existed on the date of
such financial statements or exists on the date of such
certificate any Default, and, in the case of any such
Default, specifying the nature and period of existence
thereof and what action the Borrower is taking and proposes
to take with respect thereto, and (iii) stating that the
Borrower is and at all times during such period has been in
compliance with the covenants set forth in Article V hereof
and setting forth calculations demonstrating compliance with
the covenants set forth in Sections 5.06 and 5.09 through
5.13;
(f) simultaneously with each delivery of the
consolidated financial statements referred to in subsection
(a) above, a written statement of the independent public
accountants reporting on such consolidated financial
statements to the effect that in the course of the
examination upon which their report was based they became
aware of no condition or event involving financial or
accounting matters which constitutes a Default or, if such
accountants did become aware of any such Default, specifying
the nature and period of existence thereof (it being agreed
that such accountants will not be required to conduct any
special or additional audit procedures for the purpose of
enabling them to furnish such written statement);
(g) forthwith upon any officer of the
Borrower becoming aware of any Default, a certificate signed
by the Treasurer or Chief Financial Officer of the Borrower
specifying the nature and period of existence thereof and
the action which the Borrower is taking or proposes to take
with respect thereto;
(h) if and when any member of the ERISA Group (i)
gives or is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of ERISA)
with respect to any Plan which might constitute grounds for
a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy
of the notice of such reportable event given or required to
be given to the PBGC; (ii) receives notice of complete or
partial withdrawal liability under Title IV of ERISA or
notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice;
(iii) receives notice from the PBGC under Title IV of ERISA
of an intent to terminate, impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer any Plan, a copy of such
notice; (iv) applies for a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code, a
copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi)
gives notice of withdrawal from any Plan pursuant to Section
4063 of ERISA, a coy of such notice; or (vii) fails to make
any payment or contribution to any Plan or Multiemployer
Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has
resulted or could result in the imposition of a Lien or the
posting of a bond or other security, a certificate of the
chief financial officer or the treasurer of the Borrower
setting forth details as to such occurrence and action, if
any, which the Borrower or applicable member of the ERISA
Group is required or proposes to take;
(i) promptly upon the signing thereof,
notice of any lease of real or personal property under which
the Borrower or any of its Subsidiaries is obligated to make
aggregate payments of $5,000,000 or more over any period of
five years, which notice shall provide for inspection of
such leased property at such times as the Agent or the Banks
may reasonably request; and
(j) such additional information regarding the
business, assets, financial condition, results of operations
or prospects of the Borrower and its Subsidiaries as the
Agent, at the request of any Bank, may reasonably request
from time to time.
SECTION 5.02. Payment of Taxes; Insurance; Maintenance
of Corporate Existence. The Borrower will and will cause
each Subsidiary to:
(a) pay or discharge promptly when due and payable all
taxes, assessments and other governmental charges imposed
upon it or any of its property; provided that neither the
Borrower nor any Subsidiary shall be required to pay any
such tax, assessment or governmental charge if the amount,
applicability or validity thereof is being contested in good
faith by appropriate proceedings (or payment may be made
without penalty) and a reserve, if appropriate, has been
established with respect thereto;
(b) maintain adequate insurance with financially sound
and reputable insurers covering all such properties and
risks as are customarily insured by, and in such amounts as
are customarily carried by, firms engaged in similar
businesses and similarly situated; and
(c) do all things necessary to preserve and keep in
full force and effect the corporate existence, rights and
franchises of the Borrower and its Subsidiaries; provided
that this Section 5.02(c) shall not prevent the Borrower or
any Subsidiary from abandoning or disposing of any of its
property or abandoning or terminating any right or franchise
if (i) such abandonment, disposition or termination does not
violate any other provision of this Agreement, (ii) in the
opinion of the Board of Directors of the Borrower, such
abandonment, disposition or termination is in the best
interest of the Borrower and is not detrimental in any
respect to the holder of any Note and (iii) all such
abandonments, dispositions and terminations do not in the
aggregate materially and adversely affect the business,
assets, financial condition, results of operations or
prospects of the Borrower and its Consolidated Subsidiaries,
taken as a whole.
SECTION 5.03. Maintenance of Property; Conduct of
Business. (a) The Borrower will keep, and will cause each
Subsidiary to keep, all property useful and necessary in its
business in good working order and condition, ordinary wear
and tear excepted.
(b) The Borrower will continue, and will cause
each Subsidiary to continue, to engage in business of the
same general type as now conducted by the Borrower and its
Subsidiaries.
SECTION 5.04. Compliance with Laws. The Borrower
will comply, and cause each Subsidiary to comply, in all
material respects with all applicable laws, ordinances,
rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental
Laws and ERISA and the rules and regulations thereunder)
except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings.
SECTION 5.05. Inspection of Property, Books and
Records. The Borrower will keep, and will cause each
Subsidiary to keep, proper books of record and account in
which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and
activities; and will permit, and will cause each Subsidiary
to permit, representatives of any Bank at such Bank's
expense to visit and inspect any of their respective
properties, to examine and make abstracts from any of their
respective books and records and to discuss their respective
affairs, finances and accounts with their respective
officers, employees and independent public accountants, all
at such reasonable times and as often as may reasonably be
desired.
SECTION 5.06. Limitation on Liens. The Borrower
will not, and will not permit any Subsidiary to, create,
assume or suffer to be created, assumed or incurred or to
exist any Lien upon any property or assets of the Borrower
or any Subsidiary (whether now owned or hereafter acquired)
other than:
(a) Liens securing taxes, assessments or
other governmental charges to the extent
non-payment thereof is permitted by Section
5.02(a);
(b) Liens incurred in the ordinary course of business
in connection with the workmen's compensation, unemployment
insurance and other social security obligations;
(c) Liens incurred in the ordinary course of business
but not incurred in connection with the borrowing of money,
the incurrence of Derivatives Obligations, the obtaining of
advances or the payment of the deferred purchase price of
any property or assets, including, without limitation, Liens
securing:
(i) claims of mechanics, workmen,
materialmen or other similar persons in respect of
obligations not yet due or being contested in good faith by
appropriate proceedings, or
(ii) the performance of bids, tenders or contracts
which in the aggregate do not detract in any material
respect from the value of the property or assets of the
Borrower or any Subsidiary or impair in any material respect
the use thereof in the operation of the business of the
Borrower or any Subsidiary, or
(iii) leases (including equipment leases), public or
statutory obligations (other than the obligations referred
to in paragraph (a) above), surety and appeal bonds or other
similar obligations, provided that the aggregate obligations
secured by such Liens shall not exceed $15,000,000;
(d) Liens existing as of the date of this Agreement;
provided that no such Lien shall extend
to any property other than the property as to
which such Lien was in effect as of such date and the Debt
secured by such Lien shall not be increased, renewed or
extended;
(e) Liens on property to secure the payment of all or
any part of the purchase price thereof or to secure any
Debt, incurred prior to, at the time of, or within 90 days
after the acquisition of such property, for the purpose of
financing all or any part of the purchase price of such
property; provided (i) that in no event shall the amount of
Debt secured by any such Lien exceed 75% of the purchase
price or fair market value at the time of acquisition of the
property subject to such Lien, whichever is less, (ii) that
any such Lien does not extend to property other than the
property purchased or financed in connection with which such
Lien was created and (iii) that the aggregate outstanding
principal amount of all such Debt shall not exceed
$10,000,000;
(f) Liens on property or assets of any Subsidiary
operating outside the United States securing Debt of such
Subsidiary;
(g) Liens on fixed assets securing Debt not otherwise
permitted; provided that the aggregate outstanding principal
amount of all Debt secured by Liens permitted by this
paragraph and by paragraphs (d) and (e) above shall not
exceed the greater of (i) $4,000,000 or (ii) 25% of the
excess of consolidated net fixed assets over net fixed
assets subject to Liens permitted by paragraph (f) above;
(h) Liens on cash and cash equivalents securing
Derivatives Obligations, provided that the aggregate amount
of cash and cash equivalents subject to such Liens may at no
time exceed $1,000,000; and
(i) Liens not otherwise permitted by the foregoing
clauses of this Section securing Debt in an aggregate
principal amount at any time outstanding not to exceed 5% of
Consolidated Net Worth.
SECTION 5.07. Consolidations, Mergers and Sales of
Assets. The Borrower will not (i) consolidate or merge with
or into any other Person or (ii) sell, lease or otherwise
transfer, directly or indirectly, all or any substantial
part of the assets of the Borrower and its Subsidiaries,
taken as a whole, to any other Person (other than property
held for sale in the ordinary course of business); provided
that the Borrower may merge with another Person if (A) the
Borrower is the corporation surviving such
merger and (B) immediately after giving effect to such
merger, no Default shall have occurred and be continuing.
SECTION 5.08. Use of Proceeds. The proceeds of
the Loans made under this Agreement will be used by the
Borrower for its general corporate purposes. None of such
proceeds will be used in violation of any applicable law or
regulation.
SECTION 5.09. Subsidiary Debt. Subsidiary
Debt will at no time exceed an amount equal to (i) 25% of
Consolidated Net Worth at such time minus (ii) the aggregate
principal amount of Debt of the Borrower outstanding at such
time secured by a Lien permitted solely under paragraph (i)
of Section 5.06.
SECTION 5.10. Consolidated Shareholders' Equity.
Consolidated Shareholders' Equity will at no time be less
than $60,000,000.
SECTION 5.11. Debt to Subsidiaries. The Borrower
will not incur any Debt owing to any Subsidiary unless the
same shall be for cash advances from such Subsidiary and
shall be subordinated and subject in right to the prior
payment in full of the Notes.
SECTION 5.12. EBIT/TD Ratio. The EBIT/TD Ratio
will not, for any period of four consecutive fiscal
quarters, be less than 20%.
SECTION 5.13. Restricted Payments and Guarantees.
The Borrower will not, directly or indirectly, make any
Restricted Payment and will not, and will not permit any
Subsidiary to, make any Restricted Guarantee unless, after
giving effect to any such action,
(i) the aggregate amount of all (A) Restricted
Payments made during the period commencing on May 1, 1994
and ending on and including the date of such action
("Computation Period") and (B) Restricted Guarantees of the
Borrower and its Subsidiaries existing on the date of such
action, shall not exceed $25,000,000 plus 85% (or in the
case of a net loss, minus 100%) of Consolidated Net Income
accumulated for the Computation Period, and
(ii) no Default shall have occurred and be continuing.
The Borrower will not declare any dividend on any of its
shares payable more than 90 days after the declaration date.
The Borrower will not permit any Subsidiary to make any
Restricted Payment.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more
of the following events ("Events of Default") shall have
occurred and be continuing:
(a) the Borrower shall fail to pay when due any
principal of any Loan or shall fail to pay within five
Domestic Business Days of the due date thereof any interest,
fees or other amount payable hereunder;
(b) the Borrower shall fail to observe or perform any
covenant contained in Sections 5.06 to 5.13, inclusive; (c)
the Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement (other
than those covered by clause (a) or (b) above) for 30 days
after notice thereof has been given to the Borrower by the
Agent at the request of any Bank;
(d) any representation, warranty, certification or
statement made by the Borrower in this Agreement or in any
certificate, financial statement or other document delivered
pursuant to this Agreement shall prove to have been
incorrect in any material respect when made (or deemed
made);
(e) the Borrower or any Subsidiary shall fail to pay
when due, or within any applicable period of grace, any
obligation with respect to Material Debt or Material
Financial Obligations; or any event or condition referred to
in any instrument or agreement evidencing or securing or
relating to any obligation with respect to Material Debt or
Material Financial Obligations of the Borrower or any
Subsidiary shall have occurred and be continuing which would
cause, or would permit (assuming the giving of appropriate
notice if required) any Person to cause, such obligation to
become due and payable prior to its stated maturity or the
obligations of the Borrower or any Subsidiary under any
obligation with respect to Material Debt or Material
Financial Obligations to become due and payable;
(f) the Borrower or any Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary
case or other proceeding commenced against it, or shall make
a general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due, or shall
take any corporate action to authorize any of the foregoing;
(g) an involuntary case or other proceeding shall be
commenced against the Borrower or any Subsidiary seeking
liquidation, reorganization or other relief with respect to
it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its
property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the
Borrower or any Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(h) any member of the ERISA Group shall fail to pay
within 30 days of the date when due an amount or amounts
aggregating in excess of $1,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of
intent to terminate a Material Plan shall be filed under
Title IV of ERISA by any member of the ERISA Group, any plan
administrator or any combination of the foregoing; or the
PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or to cause a
trustee to be appointed to administer any Material Plan; or
a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any Material
Plan must be terminated; or there shall occur a complete or
partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of
the ERISA Group to incur a current payment obligation in
excess of $10,000,000; or
(i) a judgment or order for the payment of money in
excess of $1,000,000 shall be rendered against the Borrower
or any Subsidiary and such judgment or order shall continue
unsatisfied and unstayed for a period of 30 days;
then, and in every such event, the Agent shall (i) if
requested by Banks having more than 66 2/3% in aggregate
amount of the Commitments, by notice to the Borrower
terminate the Commitments and they shall thereupon
terminate, and (ii) if requested by Banks holding Notes
evidencing more than 66 2/3% in aggregate principal amount
of the Loans, by notice to the Borrower declare the Notes
(together with accrued interest thereon) to be, and the
Notes shall thereupon become, immediately due and payable
without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower;
provided that in the case of any of the Events of Default
specified in clause (f) or (g) above with respect to the
Borrower, without any notice to the Borrower or any other
act by the Agent or the Banks, the Commitments shall
thereupon terminate and the Notes (together with accrued
interest thereon) shall become immediately due and payable
without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
SECTION 6.02. Notice of Default. The Agent shall give
notice to the Borrower under Section 6.01(c) promptly upon
being requested to do so by any Bank and shall thereupon
notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers
under this Agreement and the Notes as are delegated to the
Agent by the terms hereof or thereof, together with
all such powers as are reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Morgan 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 affiliate of the Borrower as if it were
not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the
Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Agent
shall not be required to take any action with respect to any
Default, except as expressly provided in Article VI.
SECTION 7.04. Consultation with Experts. The Agent
may consult with legal counsel (who may be counsel for the
Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken
or omitted to be taken by it in good faith in accordance
with the advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the Agent
nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be liable for
any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks
or (ii) in the absence of its own gross negligence or
willful misconduct. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers,
agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with this
Agreement or any borrowing hereunder; (ii) the performance
or observance of any of the covenants or agreements of the
Borrower; (iii) the satisfaction of any condition specified
in Article III, except receipt of items required to be
delivered to the Agent; or (iv) the validity, effectiveness
or genuineness of this Agreement, the Notes or any other
instrument or writing furnished in connection herewith. The
Agent shall not incur any liability by acting in reliance
upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex, facsimile or
similar writing) believed by it to be genuine or to be
signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall,
ratably in accordance with its Commitment, indemnify the
Agent, its affiliates and their respective directors,
officers, agents and employees (to the extent not reimbursed
by the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss
or liability (except such as result from such indemnitees'
gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this
Agreement or any action taken or omitted by such indemnitees
hereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges
that it has, independently and without reliance upon the
Agent or any other Bank, 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 Bank also acknowledges that it will, independently and
without reliance upon the Agent or any
other Bank, and based on such documents and information as
it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking any action
under this Agreement.
SECTION 7.08. Successor Agent. The Agent may resign
at any time by giving notice thereof to the Banks and the
Borrower. Upon any such resignation, the Required Banks
shall have the right, subject to approval by the Borrower,
to appoint a successor Agent, provided that approval of such
successor Agent by the Borrower shall not be unreasonably
withheld. If no successor Agent shall have been so
appointed by the Required Banks, and shall have accepted
such appointment, within 30 days after the retiring Agent
gives notice of resignation, then the retiring Agent may, on
behalf of the Banks, appoint a successor Agent, which shall
be a commercial bank organized or licensed under the laws of
the United States of America or of any State thereof and
having a combined capital and surplus of at least
$50,000,000. Upon the acceptance of its appointment as
Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the
rights and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation hereunder
as Agent, the provisions of this Article shall inure to its
benefit as to any actions taken or omitted to be taken by it
while it was Agent.
SECTION 7.09. Agent's Fee. The Borrower shall pay to
the Agent for its own account fees in the amounts and at the
times previously agreed upon between the Borrower and the
Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair. If on or prior to the first day of
any Interest Period for any Fixed Rate Borrowing:
(a) the Agent is advised by Morgan that deposits in
dollars (in the applicable amounts)
are not being offered to Morgan in the relevant
market for such Interest Period, or
(b) Banks having 50% or more of the aggregate amount
of the Commitments advise the Agent that the Adjusted CD
Rate or the Adjusted London Interbank Offered Rate, as the
case may be, as determined by the Agent will not adequately
and fairly reflect the cost to such Banks of funding their
CD Loans or Euro-Dollar Loans, as the case may be, for such
Interest Period,
the Agent shall forthwith give notice thereof to the
Borrower and the Banks, whereupon until the Agent notifies
the Borrower that the circumstances giving rise to such
suspension no longer exist, the obligations of the Banks to
make CD Loans or Euro-Dollar Loans, as the case may be,
shall be suspended. Unless the Borrower notifies the Agent
at least two Domestic Business Days before the date of any
Fixed Rate Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such
date, such Borrowing shall instead be made as a Base Rate
Borrowing.
SECTION 8.02. Illegality. If, on or after the date of
this Agreement, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or
administration thereof by any governmental authority,
central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by
any Bank (or its Euro-Dollar Lending Office) with any
request or directive (whether or not having the force of
law) of any such authority, central bank or comparable
agency shall make it unlawful or impossible for any Bank (or
its Euro-Dollar Lending Office) to make, maintain or fund
its Euro-Dollar Loans and such Bank shall so notify the
Agent, the Agent shall forthwith give notice thereof to the
other Banks and the Borrower, whereupon until such Bank
notifies the Borrower and the Agent that the circumstances
giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans shall be
suspended. Before giving any notice to the Agent pursuant
to this Section, such Bank shall designate a different Euro
Dollar Lending Office if such designation will avoid the
need for giving such notice and will not, in the judgment of
such Bank, be otherwise disadvantageous to such Bank. If
such Bank shall determine that it may not lawfully continue
to maintain and fund any of its outstanding Euro-Dollar
Loans to maturity and shall so specify in such notice, the
Borrower shall immediately prepay in full the then
outstanding principal amount of each such Euro-Dollar Loan,
together with accrued interest thereon. Concurrently with
prepaying each such Euro-Dollar Loan, the Borrower shall
borrow a Base Rate Loan in an equal principal amount from
such Bank (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the
other Banks), and such Bank shall make such a Base Rate
Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a)
If on or after the date hereof, the adoption of any
applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance
by any Bank (or its Applicable Lending Office) with any
request or directive (whether or not having the force of
law) of any such authority, central bank or comparable
agency:
(i) shall subject any Bank (or its
Applicable Lending Office) to any tax, duty or
other charge with respect to its Fixed Rate Loans, its Notes
or its obligation to make Fixed Rate Loans, or shall change
the basis of taxation of payments to any Bank (or its
Applicable Lending Office) of the principal of or interest
on its Fixed Rate Loans or any other amounts due under this
Agreement in respect of its Fixed Rate Loans or its
obligation to make Fixed Rate Loans (except for changes in
the rate of tax on the overall net income of such Bank or
its Applicable Lending Office imposed by the jurisdiction in
which such Bank's principal executive office or Applicable
Lending Office is located); or
(ii) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (including,
without limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System, but
excluding (A) with respect to any CD Loan any such requirement
included in an applicable Domestic Reserve Percentage and
(B) with respect to any Euro-Dollar Loan any such
requirement included in an applicable Euro-Dollar Reserve
Percentage) against assets of, deposits with or for the
account of, or credit extended by, any Bank (or its
Applicable Lending Office) or shall impose on any Bank (or
its Applicable Lending Office) or on the United States
market for certificates of deposit or the London interbank
market any other condition affecting its Fixed Rate Loans,
its Notes or its obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the
cost to such Bank (or its Applicable Lending Office) of
making or maintaining any Fixed Rate Loan, or to reduce the
amount of any sum received or receivable by such Bank (or
its Applicable Lending Office) under this Agreement or under
its Notes with respect thereto, by an amount deemed by such
Bank to be material, then, within 15 days after demand by
such Bank (with a copy to the Agent), the Borrower shall pay
to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, after
the date hereof, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change in any
such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with
the interpretation or administration thereof, or any request
or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank
or comparable agency, has or would have the effect of
reducing the rate of return on capital of such Bank (or its
Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its
Parent) could have achieved but for such adoption, change or
compliance (taking into consideration its policies with
respect to capital adequacy) by an amount deemed by such
Bank to be material, then from time to time, within 15 days
after demand by such Bank (with a copy to the Agent), the
Borrower shall pay to such Bank such additional amount or
amounts as will compensate such Bank (or its Parent) for
such reduction.
(c) Each Bank will promptly notify the Borrower
and the Agent of any event of which it has knowledge,
occurring after the date hereof, which will entitle such
Bank to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank claiming compensation under this
Section and setting forth the additional amount or amounts
to be paid to it hereunder shall be conclusive in the
absence of manifest error. In determining such amount, such
Bank may use any reasonable averaging and attribution
methods.
SECTION 8.04. Base Rate Loans Substituted for Affected
Fixed Rate Loans. If (i) the obligation of any Bank to make
Euro-Dollar Loans has been suspended pursuant to Section
8.02 or (ii) any Bank has demanded compensation under
Section 8.03(a) and the Borrower shall, by at least five
Euro-Dollar Business Days' prior notice to such Bank through
the Agent, have elected that the provisions of this Section
shall apply to such Bank, then, unless and until such Bank
notifies the Borrower that the circumstances giving rise to
such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made
by such Bank as CD Loans or Euro-Dollar Loans, as
the case may be, shall be made instead as Base
Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Fixed Rate Loans of the
other Banks), and
(b) after each of its CD Loans or Euro-Dollar Loans,
as the case may be, has been repaid, all payments of
principal which would otherwise be applied to repay such
Fixed Rate Loans shall be applied to repay its Base Rate
Loans instead.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and
other communications to any party hereunder shall be in
writing (including bank wire, telex, facsimile transmission
or similar writing) and shall be given to such party: (x)
in the case of the Borrower or the Agent, at its address or
facsimile number set forth on the signature pages hereof,
(y) in the case of any Bank, at its address or telex or
facsimile number set forth in its Administrative
Questionnaire or (z) in the case of any party, such other
address or telex or facsimile number as such party may
hereafter specify for the purpose by notice to the Agent and
the Borrower. Each such notice, request or other
communication shall be effective (i) if given by telex, when
such telex is transmitted to the telex number specified in
this Section and the appropriate answerback is received,
(ii) if given by mail, 72 hours after such communication is
deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iii) if given by any other means,
when received at the address specified in this Section;
provided that notices to the Agent under Article II or
Article VIII shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the
Agent or any Bank in exercising any right, power or
privilege hereunder or under any Note shall operate as a
waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes;
Indemnification. (a) The Borrower shall pay (i) all out-of
pocket expenses of the Agent, including fees and
disbursements of special counsel for the Agent, in
connection with the preparation of this Agreement, any
waiver or consent hereunder or any amendment hereof or any
Default or alleged Default hereunder and (ii) if an Event of
Default occurs, all out-of-pocket expenses incurred by the
Agent or any Bank, including fees and disbursements of
counsel, in connection with such Event of Default and
collection and other enforcement proceedings resulting
therefrom. The Borrower shall indemnify each Bank against
any transfer taxes, documentary taxes, assessments or
charges made by any governmental authority by reason of the
execution and delivery of this Agreement or the Notes.
(b) The Borrower agrees to indemnify the Agent and
each Bank, their respective affiliates and the respective
directors, officers, agents and employees of the foregoing
(each an "Indemnitee") and hold each Indemnitee harmless
from and against any and all damages, costs and expenses of
any kind (including, without limitation, the reasonable fees
and disbursements of counsel for any Indemnitee in
connection with any investigative, administrative or
judicial proceeding, whether or not such Indemnitee shall be
designated a party thereto) which may be incurred by any
Indemnitee, relating to or arising out of this Agreement or
any actual or proposed use of proceeds of Loans hereunder;
provided that no Indemnitee shall have the right to be
indemnified hereunder for its own gross negligence or
willful misconduct as determined by a court of competent
jurisdiction. The Borrower shall not be liable for any
settlement effected without the Borrower's consent, which
consent shall not be unreasonably withheld.
SECTION 9.04. Sharing of Set-Offs. Each Bank agrees
that if it shall, by exercising any right of set-off or
counterclaim or otherwise, receive payment of a proportion
of the aggregate amount of principal and interest due with
respect to any Note held by it which is greater than the
proportion received by any other Bank in respect of the
aggregate amount of principal and interest due with respect
to any Note held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such
participation in the Notes held by the other Banks, and such
other adjustments shall be made, as may be required so that
all such payments of principal and interest with respect to
the Notes held by the Banks shall be shared by the Banks pro
rata; provided that nothing in this Section shall impair the
right of any Bank to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness of the Borrower
other than its indebtedness under the Notes. The Borrower
agrees, to the fullest extent it may effectively do so under
applicable law, that any holder of a participation in a
Note, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim
and other rights with respect to such participation as fully
as if such holder of a participation were a direct creditor
of the Borrower in the amount of such participation.
SECTION 9.05. Amendments and Waivers. Any provision
of this Agreement or the Notes may be amended or waived if,
but only if, such amendment or waiver is in writing and is
signed by the Borrower and the Required Banks
(and, if the rights or duties of the Agent are affected
thereby, by the Agent); provided that no such amendment or
waiver shall, unless signed by all the Banks, (i) increase
or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any
Bank to any additional obligation, (ii) reduce the principal
of, accrued interest on, or rate of interest on, any Loan or
any fees hereunder, (iii) postpone the date fixed for any
payment of principal of or interest on any Loan or any fees
hereunder or the Termination Date or (iv) change the
percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or the number of Banks, which
shall be required for the Banks or any of them to take any
action under this Section or any other provision of this
Agreement.
SECTION 9.06. 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, except that the Borrower may not
assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more
banks or other institutions (each a "Participant")
participating interests in its Commitment or any or all of
its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon
notice to the Borrower and the Agent, such Bank shall remain
responsible for the performance of its obligations
hereunder, and the Borrower and the Agent shall continue to
deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement. Any
agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the
obligations of the Borrower hereunder including, without
limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided that
such participation agreement may provide that such Bank will
not agree to any modification, amendment or waiver of this
Agreement described in clause (i), (ii) or (iii) of Section
9.05 without the consent of the Participant. The Borrower
agrees that each Participant shall, to the extent provided
in its participation agreement, be entitled to the benefits
of Article VIII with respect to its participating interest.
An assignment or other transfer which is not permitted by
subsection (c) or (d) below shall be given effect for
purposes of this Agreement only to the extent of a
participating interest granted in accordance with this
subsection (b).
(c) Any Bank may at any time assign to one or more
banks or other institutions (each an "Assignee") all, or a
proportionate part of all, of its rights and obligations
under this Agreement and the Notes, and such Assignee shall
assume such rights and obligations, pursuant to an
instrument executed by such Assignee and such transferor
Bank, with (and subject to) the subscribed consent of the
Borrower and the Agent; provided that if an Assignee is an
affiliate of such transferor Bank, no such consent shall be
required. Upon execution and delivery of such an instrument
and payment by such Assignee to such transferor Bank of an
amount equal to the purchase price agreed between such
transferor Bank and such Assignee, such Assignee shall be a
Bank party to this Agreement and shall
have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption,
and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required.
Upon the consummation of any assignment pursuant to this
subsection (c), the transferor Bank, the Agent and the
Borrower shall make appropriate arrangements so that, if
required, a new Note is issued to the Assignee. If the
Assignee is not incorporated under the laws of the United
States of America or a state thereof, it shall, prior to the
first date on which interest or fees are payable hereunder
for its account, deliver to the Borrower and the Agent
certification as to exemption from deduction or withholding
of any United States federal income taxes in accordance with
Section 2.13.
(d) Any Bank may at any time assign all or any portion
of its rights under this Agreement and its Note to a Federal
Reserve Bank. No such assignment shall release the
transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of
any Bank's rights shall be entitled to receive any greater
payment under Section 8.03 than such Bank would have been
entitled to receive with respect to the rights transferred,
unless such transfer is made with the Borrower's prior
written consent or by reason of the provisions of Section
8.02 or 8.03 requiring such Bank to designate a different
Applicable Lending Office under certain circumstances or at
a time when the circumstances giving rise to such greater
payment did not exist.
SECTION 9.07. Collateral. Each of the Banks
represents to the Agent and each of the other Banks that it
in good faith is not relying upon any "margin stock" (as
defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.08. New York Law. This Agreement and each
Note shall be construed in accordance with and governed by
the law of the State of New York.
SECTION 9.09. Counterparts; Integration. This
Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement
and understanding among the parties hereto and supersedes
any and all prior agreements and understandings, oral or
written, relating to the subject matter hereof.
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.
JOHN WILEY & SONS, INC.
By /s/ Robert D. Wilder
Senior Vice President
& Chief Financial Officer
605 Third Avenue
New York, New York 10058-0012
Facsimile number: (212) 850-6088
Commitments
$20,000,000 MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By /s/ Vance B. Barbour
Associate
$15,000,000 CHEMICAL BANK
By /s/ Debra J. Runkle
Vice President
$15,000,000 CORESTATES BANK, N.A.
By /s/ Melissa G. Landay
Assistant Vice President
_________________
Total Commitments
$50,000,000
=================
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Vance B. Barbour
Associate
60 Wall Street
New York, New York 10260-0060
Attention: Vance B. Barbour
Facsimile number: (212) 648-5017
EXHIBIT A
NOTE
New York, New York
March 30, 1995
For value received, JOHN WILEY & SONS, INC., a New York
corporation (the "Borrower"), promises to pay to the
order of ______________ (the "Bank"), for the account of its
Applicable Lending Office, the unpaid principal amount of
each Loan made by the Bank to the Borrower pursuant to the
Credit Agreement referred to below on the last day of the
Interest Period relating to such Loan. The Borrower
promises to pay interest on the unpaid principal amount of
each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the
United States in Federal or other immediately available
funds at the office of Morgan Guaranty Trust Company of New
York, 60 Wall Street, New York, New York.
All Loans made by the Bank, the respective types and
maturities thereof and all repayments of the principal
thereof shall be recorded by the Bank and, prior to any
transfer hereof, appropriate notations to evidence the
foregoing information with respect to each such Loan then
outstanding shall be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule
attached to and made a part hereof; provided that the
failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit
Agreement dated as of March 30, 1995 among the Borrower, the
banks listed on the signature pages thereof and Morgan
Guaranty Trust Company of New York, as Agent (as the same
may be amended from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with
the same meanings. Reference is made to the Credit
Agreement for provisions for the prepayment hereof and the
acceleration of the maturity hereof.
JOHN WILEY & SONS, INC.
By___________________________
Title:
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
____________________________________________________________
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
EXHIBIT B
OPINION OF
COUNSEL FOR THE BORROWER
March 30, 1995
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260-0060
Dear Sirs:
I am counsel for John Wiley & Sons, Inc., a New York
corporation (the "Borrower") and have acted as counsel to
the Borrower in connection with the Credit Agreement (the
"Agreement") dated as of March 30, 1995 among the Borrower,
the banks named therein and Morgan Guaranty Trust Company of
New York, as Agent. Terms defined in the Agreement are used
herein as therein defined.
I have examined originals or copies, certified or
otherwise identified to my satisfaction, of such documents,
corporate records, certificates of public officials and
other instruments and have conducted such other
investigations of fact and law as we have deemed necessary
or advisable for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion
that:
1. The Borrower is a corporation duly
incorporated, validly existing and in good standing under
the laws of the State of New York, and has all corporate
powers and all material governmental licenses,
authorizations, consents and approvals required to carry on
its business as now conducted.
2. The execution, delivery and performance by the
Borrower of the Agreement and each Note are within the
Borrower's corporate power, have been duly authorized by all
necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default
under, any provision of applicable law or regulation or of
the Restated Certificate of Incorporation or by-laws of the
Borrower or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Borrower or
result in the creation or imposition of any Lien on any
asset of the Borrower or any of its Subsidiaries.
3. The Agreement constitutes a valid and binding
agreement of the Borrower and each Note constitutes a valid
and binding obligation of the Borrower, in each case
enforceable in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by general
principles of equity.
4. There is no action, suit or proceeding pending
against, or to the best of my knowledge threatened against
or affecting the Borrower or any of its Subsidiaries before
any court or arbitrator or any governmental body, agency or
official, in which there is a reasonable possibility of an
adverse decision which could materially adversely affect the
business, consolidated financial position or consolidated
results of operations of the Borrower and its Consolidated
Subsidiaries or which in any manner draws into question the
validity of the Agreement or each Note.
5. I have no reason to believe that each of the
Borrower's Subsidiaries is not a corporation duly
incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation, or that each
does not have all corporate powers and all material
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted.
Very truly yours,
EXHIBIT C
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE AGENT
March 30, 1995
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260-0060
Dear Sirs:
We have participated in the preparation of the Credit
Agreement (the "Credit Agreement") dated as of March 30,
1995 among John Wiley & Sons, Inc., a New York corporation
(the "Borrower"), the banks listed on the signature pages
thereof (the "Banks") and Morgan Guaranty Trust Company of
New York, as Agent (the "Agent"), and have acted as special
counsel for the Agent for the purpose of rendering this
opinion pursuant to Section 3.01(d) of the Credit Agreement.
Terms defined in the Credit Agreement are used herein as
therein defined.
We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and
other instruments and have conducted such other
investigations of fact and law as we have deemed necessary
or advisable for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion
that:
1. The execution, delivery and performance by the
Borrower of the Credit Agreement and each Note are within
the Borrower's corporate powers and have been duly
authorized by all necessary corporate action.
2. The Credit Agreement constitutes a valid and
binding agreement of the Borrower and each Note constitutes
a valid and binding obligation of the Borrower, in each case
enforceable in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by general
principles of equity.
We are members of the Bar of the State of New York and
the foregoing opinion is limited to the laws of the State of
New York and the federal laws of the United States of
America. In giving the foregoing opinion, we express no
opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any
Bank is located which limits the rate of interest that such
Bank may charge or collect.
This opinion is rendered solely to you in connection
with the above matter. This opinion may not be relied upon
by you for any other purpose or relied upon by any other
person without our prior written consent.
Very truly yours,