Exhibit 10.2
---------------
CONFORMED COPY
$75,000,000
CREDIT AGREEMENT
dated as of
June 12, 1996
among
John Wiley & Sons, Inc.,
The Banks From Time to Time Parties Hereto
and
Morgan Guaranty Trust Company of New York,
as Agent
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions 1
SECTION 1.02. Accounting Terms and
Determinations 14
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend 15
SECTION 2.02. Method of Borrowing 15
SECTION 2.03. Notes 17
SECTION 2.04. Maturity of Loans 17
SECTION 2.05. Interest Rates 17
SECTION 2.06. Facility Fees 21
SECTION 2.07. Optional Termination
or Reduction of Commitments 22
SECTION 2.08. Mandatory
Termination of Commitments 22
SECTION 2.09. Optional Prepayments 22
SECTION 2.10. General Provisions
as to Payments 22
SECTION 2.11. Funding Losses 23
SECTION 2.12. Computation of
Interest and Fees 23
SECTION 2.13. Withholding Tax
Exemption 24
SECTION 2.14. Change of Control 24
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness 26
SECTION 3.02. Borrowings 27
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence
and Power 28
SECTION 4.02. Corporate and
Governmental Authorization; No
Contravention 28
SECTION 4.03. Binding Effect 29
SECTION 4.04. Financial
Information 29
SECTION 4.05. Litigation 29
SECTION 4.06. Compliance with
ERISA 30
SECTION 4.07. Taxes 30
SECTION 4.08. Subsidiaries 30
SECTION 4.09. Not an Investment
Company 31
SECTION 4.10. Status of Notes 31
SECTION 4.11. Environmental
Matters 31
ARTICLE V
COVENANTS
SECTION 5.01. Information 31
SECTION 5.02. Payment of Taxes;
Insurance; Maintenance of Corporate
Existence 34
SECTION 5.03. Maintenance of
Property; Conduct of Business 35
SECTION 5.04. Compliance with Laws 35
SECTION 5.05. Inspection of
Property, Books and Records 36
SECTION 5.06. Limitation on Liens 36
SECTION 5.07. Consolidations,
Mergers and Sales of Assets 38
SECTION 5.08. Use of Proceeds 38
SECTION 5.09. Subsidiary Debt 38
SECTION 5.10. Consolidated
Shareholders' Equity 38
SECTION 5.11. Debt to Subsidiaries 38
SECTION 5.12. EBIT/TD Ratio 38
SECTION 5.13. Restricted Payments
and Guarantees 39
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default 39
SECTION 6.02. Notice of Default 42
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and
Authorization 42
SECTION 7.02. Agent and Affiliates 42
SECTION 7.03. Action by Agent 42
SECTION 7.04. Consultation with
Experts 42
SECTION 7.05. Liability of Agent 42
SECTION 7.06. Indemnification 43
SECTION 7.07. Credit Decision 43
SECTION 7.08. Successor Agent 43
SECTION 7.09. Agent's Fee 44
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for
Determining Interest Rate
Inadequate or Unfair 44
SECTION 8.02. Illegality 45
SECTION 8.03. Increased Cost and
Reduced Return 45
SECTION 8.04. Base Rate Loans
Substituted for Affected Fixed Rate
Loans 47
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices 48
SECTION 9.02. No Waivers 48
SECTION 9.03. Expenses;
Documentary Taxes; Indemnification 48
SECTION 9.04. Sharing of Set-Offs 49
SECTION 9.05. Amendments and
Waivers 50
SECTION 9.06. Successors and
Assigns 50
SECTION 9.07. Collateral 52
SECTION 9.08. New York Law 52
SECTION 9.09. Counterparts;
Integration 52
Exhibit A - Note
Exhibit B - Opinion of Counsel for the Borrower
CREDIT AGREEMENT
AGREEMENT dated as of June 12, 1996 among JOHN
WILEY & SONS, INC., the BANKS from time to time parties
hereto 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:
"Acquisition" means the Acquisition by the
Borrower of 90% of the outstanding capital stock of VCH
Publishing Group from Pallas Investment Group, the German
Chemical Society and the German Pharmaceutical Society.
"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 Morgan, 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 1995 Form 10-K" means the Borrower's
annual report on Form 10-K for the fiscal year ended April
30, 1995, 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
"Euro-Dollar 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 (i) with respect to each Bank
listed on the signature pages hereof, the amount set forth
opposite its name on the signature pages hereof and (ii)
with respect to each Assignee or other Person which becomes
a Bank pursuant to Section 9.06(c), the amount of Commitment
thereby assumed by it, in each case as such amount may be
reduced from time to time pursuant to Sections 2.07 or
9.06(c) or increased from time to time pursuant to Section
9.06(c).
"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, its 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 Euro-Dollar 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 Euro-Dollar 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 Euro-Dollar 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.
"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 June 11, 1997, or, if
such day is not a Euro-Dollar Business Day, 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 $5,000,000 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. 327.4(a) (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% 0.625%
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 $10,000,000 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 . 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 evidence satisfactory
to it in its sole good faith discretion of the
substantially simultaneous closing of the Acquisition;
(d) 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;
(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; and
(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;
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 June 30, 1996. 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.
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,
1995 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 1995 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, 1996 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, 1996 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, 1996 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 . 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. 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 . 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.. 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. 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. 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. 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-. 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 notice to the Borrower and subject to
the subscribed consent of the Agent; provided that if an
Assignee is an affiliate of such transferor Bank, no such
consent shall be required; and provided further that any
assignment shall not be less than $5,000,000, or if less,
shall constitute an assignment of all of such Bank's rights
and obligations under this Agreement and the Notes. 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
-------------------------------
Title: Sr. Vice President & CFO
605 Third Avenue
New York, New York 10058-0012
Facsimile number: (212) 850-6088
Commitments
- -----------
$75,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Bank and Agent
By /s/ Eugenia Wilds
-----------------------------------
Title: Vice President
60 Wall Street
New York, New York 10260-0060
Attention: Vance B. Barbour
Facsimile number: (212) 648-5017
EXHIBIT A
June 12, 1996
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 June 12, 1996 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
June 12, 1996
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 June 12, 1996 among the Borrower,
the banks from time to time parties thereto 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,
The Table of Contents is not a part of this Agreement.