UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM 8-K/A
CURRENT REPORT
(Amendment No. 1)
Pursuant To Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): September 22, 2003
THE WASHINGTON POST COMPANY
(Exact name of registrant as specified in its charter)
Delaware 1-6714 53-0182885
(State or other (Commission File Number) (IRS Employer
jurisdiction Identification
of incorporation) Number)
1150 15th Street, N.W. 20071
Washington, DC (Zip Code)
(Address of principal executive offices)
(202) 334-6000
(Registrant's Telephone Number, Including Area Code)
Not Applicable
(Former name or former address, if changed since last report)
2
Item 5. Other Events
Corporate Restructuring
On September 22, 2003, The Washington Post Company (the "Company")
announced that it has completed an internal corporate restructuring (the
"Restructuring"). The principal purpose of the Restructuring was to separate
the Company's Washington Post newspaper publishing business into a subsidiary
of a newly formed public holding company (the "Holding Company"), which has
assumed the corporate name of "The Washington Post Company". Pursuant to Rule
12g-3(a) under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), the Class B Common Stock of the Holding Company is deemed to be
registered under Section 12(b) of the Exchange Act.
A copy of the press release further describing the Restructuring is
attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Item 7. Financial Statements and Exhibits.
C. Exhibits.
Exhibit No. Description
2.1 Agreement and Plan of Merger dated as of September 19,
2003, among The Washington Post Company, TWPC, Inc. and WP
Company.
2.2 Transfer Agreement dated as of September 22, 2003, between
WP Company LLC (formerly known as The Washington Post
Company) and The Washington Post Company (formerly known as
TWPC, Inc.).
3.1 Amended and Restated Certificate of Incorporation of The
Washington Post Company (formerly known as TWPC, Inc.)
dated as of September 22, 2003.
3.2 Certificate of Designation of Series A Preferred Stock of
The Washington Post Company (formerly known as TWPC, Inc.)
dated as of September 22, 2003.
3.3 Amended and Restated Certificate of Incorporation of WP
Company (formerly known as The Washington Post Company)
dated as of September 22, 2003.
3.4 By-Laws of The Washington Post Company (formerly known as
TWPC, Inc. as amended and restated through
September 22, 2003.
4.1 First Supplemental Indenture dated as of September 22,
2003, among WP Company LLC (formerly known as The
Washington Post Company), the Company (formerly
3
known as TWPC, Inc.) and Bank One, NA, as successor to The
First National Bank of Chicago, as trustee, to the
Indenture dated as of February 17, 1999 between The
Washington Post Company and The First National Bank of
Chicago, as trustee (which Indenture is incorporated by
reference to Exhibit 4.3 to the Company's Annual Report on
Form 10-K for the fiscal year ended January 3, 1999).
4.2 364-Day Credit Agreement dated as of August 13, 2003,
among the Company, the banks, financial institutions and
other institutional lenders named therein and Citibank,
N.A., as administrative agent for the lenders.
4.3 Consent and Amendment No. 1 dated as of August 13, 2003,
to the 5-Year Credit Agreement dated as of August 14,
2002, among the Company, the banks, financial institutions
and other institutional lenders, named therein and
Citibank, N.A., as agent for the lenders (which 5-Year
Credit Agreement is incorporated by reference to Exhibit
4.4 to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 29, 2002).
99.1 Press Release dated September 23, 2003.
4
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
The Washington Post Company
Date: September 22, 2003 By: /s/ John B. Morse, Jr.
-----------------------------
Name: John B. Morse, Jr.
Title: Vice President - Finance
5
EXHIBIT INDEX
Exhibit No. Description
Exhibit 2.1 Agreement and Plan of Merger dated as of September 17,
2003, among The Washington Post Company, TWPC, Inc. and WP
Company.
Exhibit 2.2 Transfer Agreement dated as of September 22, 2003, between
WP Company LLC (formerly known as The Washington Post
Company) and The Washington Post Company (formerly known as
TWPC, Inc.).
Exhibit 3.1 Amended and Restated Certificate of Incorporation of The
Washington Post Company (formerly known as TWPC, Inc.)
dated as of September 22, 2003.
Exhibit 3.2 Certificate of Designation of Series A Preferred Stock of
The Washington Post Company (formerly known as TWPC, Inc.)
dated as of September 22, 2003.
Exhibit 3.3 Amended and Restated Certificate of Incorporation of WP
Company (formerly known as The Washington Post Company)
dated as of September 22, 2003.
Exhibit 3.4 By-Laws of The Washington Post Company (formerly known as
TWPC, Inc.) as amended and restated through September 22,
2003.
Exhibit 4.1 First Supplemental Indenture dated as of September 22, 2003,
among WP Company LLC (formerly known as The Washington
Post Company), the Company (formerly known as TWPC, Inc.)
and Bank One, NA, as successor to The First National Bank
of Chicago, as trustee, to the Indenture dated as of
February 17, 1999 between The Washington Post Company and
The First National Bank of Chicago, as trustee (which
Indenture is incorporated by reference to Exhibit 4.3 to
the Company's Annual Report on Form 10-K for the fiscal
year ended January 3, 1999).
Exhibit 4.2 364-Day Credit Agreement dated as of August 13, 2003,
among the Company, the banks, financial institutions and
other institutional lenders named therein and Citibank,
N.A., as administrative agent for the lenders.
Exhibit 4.3 Consent and Amendment No. 1 dated as of August 13, 2003,
to the 5-Year Credit Agreement dated as of August 14, 2002,
among the Company, the banks, financial institutions and
other institutional lenders, named therein and Citibank,
N.A., as agent for the
6
lenders (which 5-year Credit Agreement is incorporated by
reference to Exhibit 4.4 to the Company's Quarterly Report
on Form 10-Q for the quarter ended September 29, 2002).
Exhibit 99.1 Press Release dated September 23, 2003.
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
AMONG
THE WASHINGTON POST COMPANY,
TWPC, INC.
AND
WP COMPANY
Dated as of September 19, 2003
i
TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER.............................................................1
Section 1.1 The Merger................................................1
Section 1.2 Effective Time............................................1
Section 1.3 Effects of the Merger.....................................1
Section 1.4 Charter and Bylaws; Directors and Officers................2
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES; CLOSING............2
Section 2.1 Conversion of Securities..................................2
Section 2.2 Further Assurances........................................3
Section 2.3 Closing...................................................3
ARTICLE III
RELATED ARRANGEMENTS...................................................4
Section 3.1 Related Arrangements......................................4
ARTICLE IV
GENERAL PROVISIONS.....................................................4
Section 4.1 Interpretation............................................4
Section 4.2 Counterparts..............................................5
Section 4.3 Entire Agreement; No Third-Party Beneficiaries............5
Section 4.4 Governing Law.............................................5
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of September 19, 2003 (this
"Agreement"), among The Washington Post Company, a Delaware corporation
("Parent"), TWPC, Inc., a Delaware corporation and wholly-owned subsidiary of
Parent (the "Company"), and WP Company, a Delaware corporation and
wholly-owned subsidiary of the Company ("Sub").
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of Parent, the Company
and Sub have each approved the merger of Parent with and into Sub (the
"Merger"), upon the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS, the Merger is being effected pursuant to the provisions of
Section 251(g) of the Delaware General Corporation Law, as amended (the
"DGCL").
NOW, THEREFORE, in consideration of the premises, representations,
warranties and agreements herein contained, the parties agree as follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to the conditions
hereof, and in accordance with the DGCL, Parent shall be merged with Sub at
the Effective Time (as defined in Section 1.2). At the Effective Time, the
separate corporate existence of Sub shall cease and Parent shall continue as
the surviving corporation (the "Surviving Corporation") and shall succeed to
and assume all the rights and obligations of Sub in accordance with the DGCL.
The Merger shall be effected in accordance with, and pursuant to, the terms of
Section 251(g) of the DGCL.
Section 1.2 Effective Time. The Merger shall become effective when a
certificate of merger (the "Certificate of Merger"), executed in accordance
with the relevant provisions of the DGCL, is duly filed with the Secretary of
State of the State of Delaware, or at such other time as is specified in the
Certificate of Merger (the time the Merger becomes effective being hereinafter
referred to as the "Effective Time"). The Certificate of Merger shall be so
filed by Parent on the date of the Closing (as defined in Section 2.3) or such
other time as Parent and Sub shall mutually agree.
Section 1.3 Effects of the Merger. The Merger shall have the effects
set forth in Section 259 of the DGCL.
Section 1.4 Charter and Bylaws; Directors and Officers. (a) At the
Effective Time, the Certificate of Incorporation of Sub (the "Charter") as in
effect immediately prior to the Effective Time shall be the Certificate of
Incorporation of the Surviving Corporation until thereafter changed or amended
as provided therein or by applicable law. At the Effective Time, the Bylaws of
Sub as in effect immediately prior to the Effective Time shall be the Bylaws
of the Surviving Corporation until thereafter changed or amended as provided
therein.
(b) The directors of Sub immediately prior to the Effective Time
shall be the directors of the Surviving Corporation at the Effective Time,
until the earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be. The officers of
Sub immediately prior to at the Effective Time of the Merger shall be the
officers of the Surviving Corporation at the Effective Time, until the earlier
of their resignation or removal or until their respective successors are duly
elected and qualified, as the case may be.
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES; CLOSING
Section 2.1 Conversion of Securities. As of the Effective Time, by
virtue of the Merger and without any action on the part of Parent, the Company
or Sub:
(a) Each issued and outstanding share of common stock, par value $1
per share, of the Company held by Parent shall no longer be outstanding and
shall automatically be canceled and retired and shall cease to exist, and no
consideration shall be delivered in exchange therefor.
(b) Each issued and outstanding share of common stock, par value of
$1 per share, of Sub shall be converted into one validly issued, fully paid
and nonassessable share of common stock, par value $1 per share, of the
Surviving Corporation.
(c) All shares that are held in the treasury of the Sub shall no
longer be outstanding and shall automatically be canceled and retired and
shall cease to exist and no consideration shall be delivered in exchange
therefor.
(d) Each issued and outstanding share of Class A Common Stock, par
value $1 per share, of Parent shall be converted into one validly issued,
fully paid and nonassessable share of Class A Common Stock of the Company. All
of the shares of Class A Common Stock of Parent converted into Class A Common
Stock of the Company pursuant to this Section 2.1(d) shall no longer be
outstanding and shall automatically be canceled and shall cease to exist as of
the Effective Time, and each certificate previously representing any such
shares of Class A Common Stock of Parent shall thereafter represent
automatically, without the requirement of any exchange thereof, the same
number of shares of Class A Common Stock of the Company.
(e) Each issued and outstanding share of Class B Common Stock, par
value $1 per share, of Parent shall be converted into one validly issued,
fully paid and nonassessable share of Class B Common Stock of the Company. All
of the shares of Class B Common Stock of Parent converted into Class B Common
Stock of the Company pursuant to this Section 2.1(e) shall no longer be
outstanding and shall automatically be canceled and shall cease to exist as of
the Effective Time, and each certificate previously representing any such
shares of Class B Common Stock of Parent shall thereafter represent
automatically, without the requirement of any exchange thereof, the same
number of shares of Class B Common Stock of the Company.
(f) Each issued and outstanding share of Series A Preferred Stock,
par value $1 per share, of Parent shall be converted into one validly issued,
fully paid and nonassesable share of Series A Preferred Stock of the Company.
All of the shares of Series A Preferred Stock of Parent converted into Series
A Preferred Stock of the Company pursuant to this Section 2.1(f) shall no
longer be outstanding and shall automatically be canceled and shall cease to
exist as of the Effective Time, and each certificate previously representing
any such shares of Series A Preferred Stock of Parent shall thereafter
represent automatically, without the requirement of any exchange thereof, the
same number of shares of Series A Preferred Stock of Parent.
(g) All shares of Class A Common Stock, Class B Common Stock and
Series A Preferred Stock that are held in the treasury of Parent shall be
converted into one validly issued share of Class A Common Stock, Class B
Common Stock and Series A Preferred Stock respectively, of the Company held in
the treasury of the Company.
Section 2.2 Further Assurances. If at any time after the Effective
Time the Surviving Corporation shall consider or be advised that any deeds,
bills of sale, assignments or assurances or any other acts or things are
necessary, desirable or proper (a) to vest, perfect or confirm, of record or
otherwise, in the Surviving Corporation its right, title or interest in, to or
under any of the rights, privileges, powers, franchises, properties or assets
of either of the Constituent Corporations, or (b) otherwise to carry out the
purposes of this Agreement, the Surviving Corporation and its proper officers
and directors or their designees shall be authorized to execute and deliver,
in the name and on behalf of either of the Constituent Corporations, all such
deeds, bills of sale, assignments and assurances and to do, in the name and on
behalf of either Constituent Corporation, all such other acts and things as
may be necessary, desirable or proper to vest, perfect or confirm the
Surviving Corporation's right, title or interest in, to or under any of the
rights, privileges, powers, franchises, properties or assets of such
Constituent Corporation and otherwise to carry out the purposes of this
Agreement. In addition, the parties agree to take all steps necessary to
ensure that all the conditions required to effect the Merger in accordance
with, and pursuant to, the terms of Section 251(g) of the DGCL are satisfied.
Section 2.3 Closing. The closing of the transactions contemplated by
this Agreement (the "Closing") and all actions specified in this Agreement to
occur at the Closing shall take place at the offices of Cravath, Swaine &
Moore LLP, 825 Eighth Avenue, New York,
NY 10019, at 9:00 a.m., local time, on September 22, 2003.
ARTICLE III
RELATED ARRANGEMENTS
Section 3.1 Related Arrangements. Immediately after the Effective
Time, the Surviving Corporation shall convert to a Delaware limited liability
company (the "New LLC"). The Company shall:
(a) file, simultaneously with the filing of the Certificate of Merger
contemplated by Section 1.2, with the Secretary of State of the State of
Delaware an Amended and Restated Certificate of Incorporation of the Company
that is identical to the Certificate of Incorporation of Parent immediately
prior to the Effective Time (which such Amended and Restated Certificate of
Incorporation shall, among other things, change the name of the Company to
"The Washington Post Company");
(b) at the Effective Time, amend and restate its bylaws so that the
bylaws of the Company are identical to the bylaws of Parent immediately prior
to the Effective Time;
(c) immediately after the Effective Time, execute a Transfer Agreement to
be dated September 22, 2003, between the Company and the New LLC, pursuant to
which the New LLC will assign, transfer, convey and dispose to the Company and
the Company will accept and assume, all assets (including the capital stock of
subsidiaries and all other equity investments directly held by the New LLC)
and liabilities (including contingent liabilities) of the Surviving
Corporation, other than the assets and liabilities (including contingent
liabilities) relating to the operating newspaper publishing business known as
"The Washington Post"; and
(d) take all steps necessary to ensure that (i) the Company is the
successor issuer of Parent for purposes of registration of the Class B Common
Stock of the Company under the Securities and Exchange Act of 1934 and (ii)
the Class B Common Stock of the Company is listed on the New York Stock
Exchange in the same manner that the Class B Common Stock of Parent is listed
thereon immediately prior to the Effective Time.
ARTICLE IV
GENERAL PROVISIONS
Section 4.1 Interpretation. (a) When a reference is made in this
Agreement to a Section, such reference shall be to a Section of this Agreement
unless otherwise indicated. The table of contents and headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to
be followed by the words "without limitation."
Section 4.2 Counterparts. This Agreement may be executed in
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each
of the parties and delivered to the other parties.
Section 4.3 Entire Agreement; No Third-Party Beneficiaries. This
Agreement constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
Section 4.4 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts
of laws thereof.
[signature pages follow]
IN WITNESS WHEREOF, Parent, Sub and the Company have caused this
Agreement to be signed by their respective officers thereunto duly authorized
all as of the date first written above.
THE WASHINGTON POST COMPANY
By: /s/ Gerald M. Rosberg
-------------------------------------
Name: Gerald M. Rosberg
Title: Vice President - Development
TWPC, INC.
By: /s/ John B. Morse, Jr.
--------------------------------------
Name: John B. Morse, Jr.
Title: President
WP COMPANY
By: /s/ John B. Morse, Jr.
-------------------------------------
Name: John B. Morse, Jr.
Title: President
Exhibit 2.2
TRANSFER AGREEMENT (this "Agreement")
dated as of September 22, 2003, between THE
WASHINGTON POST COMPANY (formerly known as TWPC,
Inc.), a Delaware corporation ("Parent"), and WP
Company LLC (formerly known as The Washington Post
Company, a Delaware limited liability company (the
"Company").
WHEREAS, Parent is the sole shareholder of the Company;
WHEREAS, Parent and the Company have completed an internal corporate
restructuring (the "Restructuring") pursuant to which the Company merged with
a wholly owned subsidiary of Parent, pursuant to Section 251(g) of the
Delaware General Corporation Law, with the Company surviving such merger and
converting to a Delaware limited liability company;
WHEREAS, as a result of the Restructuring, the Company is a
wholly-owned subsidiary of Parent;
WHEREAS, in connection with the Restructuring, the Company wishes to
transfer certain assets and liabilities to Parent and Parent wishes to accept
and assume such assets and liabilities;
NOW THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties, the parties hereby agree as follows:
1. Transfer of Transferred Assets. The Company hereby assigns,
transfers, conveys and disposes all of the Transferred Assets (as defined
below) to Parent and Parent hereby accepts the Transferred Assets.
"Transferred Assets" means (i) all of the capital stock of subsidiaries and
all other equity investments directly held by the Company and (ii) all of the
other assets of the Company, other than the assets of the Company relating to
the operating newspaper business known as "The Washington Post".
2. Transfer of Transferred Liabilities. (a) The Company hereby
assigns, transfers, conveys and disposes the Transferred Liabilities (as
defined below) to Parent, and Parent hereby assumes the Transferred
Liabilities. "Transferred Liabilities" means all of the liabilities (including
contingent liabilities) of the Company, other than the liabilities (including
contingent liabilities) relating to the operating newspaper business known as
"The Washington Post". (b) Without limiting the generality of subsection (a)
of this Section, the Company hereby assigns, transfers, conveys and disposes
the Debt (as defined below) to Parent, and Parent hereby assumes the Debt.
"Debt" means:
(i) all obligations relating to the outstanding 5.50% Notes due
February 15, 2009, issued under an indenture dated as of February
securities issued under the indenture dated as of February 17, 1999,
between the Company (then known as The Washington Post Company) and
Bank One, NA (as successor to The First National Bank of Chicago),
as trustee (the "Trustee"), the transfer of such obligations being
evidenced by a supplemental indenture (the "Supplemental Indenture")
of even date herewith, between the Company, Parent and the Trustee,
a copy of which Supplemental Indenture is attached hereto as Exhibit
A;
(ii) all rights and obligations of the Company, as the Borrower,
under the 364-Day Credit Agreement dated as of August 13, 2003,
among the Company (then known as The Washington Post Company),
Citibank, N.A. Wachovia Bank, N.A., SunTrust Bank, JPMorgan Chase
Bank, Bank One, NA, The Bank of New York and Riggs Bank N.A., the
transfer of such rights and obligations being evidenced by an
assignment and assumption agreement (the "364-Day Assignment") of
even date herewith, between the Company and Parent, a copy of which
364-Day Assignment is attached hereto as Exhibit B;
(iii) all rights and obligations of the Company, as the Borrower,
under the 5-Year Credit Agreement dated as of August 14, 2002, as
amended as of August 13, 2003, among the Company (then known as The
Washington Post Company), Citibank, N.A., Wachovia Bank, N.A.,
SunTrust Bank, JPMorgan Chase Bank, Bank One, N.A., The Bank of New
York and Riggs Bank N.A., the transfer of such rights and
obligations being evidenced by an assignment and assumption
agreement (the "5-Year Assignment") of even date herewith, between
the Company and Parent, a copy of which 5-Year Assignment is
attached hereto as Exhibit C; and
(iv) all the rights and obligations of the Company, as Borrower,
under the letter agreement dated as of January 29, 1996, between The
Washington Post Company and Goldman Sachs Money Markets, L.P., a
Commercial Paper Issuing and Paying Agent Agreement dated as of June
16, 1997, between The Washington Post Company and Citibank, N.A., a
Citi Treasury Manager Agreement dated as of June 16, 1997, between
The Washington Post Company and Citibank, N.A. and a Corporate
Commercial Paper - Master Note dated as of August 20, 1997, issued
by The Washington Post Company, the transfer of such rights and
obligations being evidenced by an assignment and assumption
agreement (the "Commercial Paper Assignment") of even date herewith,
between the Company and Parent, a copy of which Commercial Paper
Assignment is attached hereto as Exhibit D.
3. Retention of Assets and Liabilities. The Company shall retain all
assets and liabilities (including contingent liabilities) not being assigned,
transferred, conveyed or disposed pursuant to Sections 1 and 2 above.
4. Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
5. Counterparts. This Agreement may be executed in counterparts, all
of which shall be considered one and the same agreement, and shall become
effective when one or more counterparts have been signed by each party and
delivered to the other party.
6. Entire Agreement; No Third-Party Beneficiaries. This Agreement
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
7. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
[signature pages follow]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed and delivered by their authorized representatives as of the date
first above written.
THE WASHINGTON POST COMPANY (formerly TWPC, Inc.),
by /s/ John B. Morse, Jr.
-----------------------------------------
Name: John B. Morse, Jr.
Title: Vice President - Finance
WP COMPANY LLC,
by /s/ Gerald M. Rosberg
----------------------------------------
Name: Gerald M. Rosberg
Title: Vice President - Development
================================================================================
Exhibit 3.1
TWPC, INC.
Incorporated under the Laws of the State of Delaware
on July 21, 2003
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
Pursuant to Section 245
-----------
Effective as of September 22, 2003
================================================================================
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
of
TWPC, INC.
Effective as of September 22, 2003
----------------
FIRST: The name of the corporation (hereinafter called the Company),
shall hereinafter be
THE WASHINGTON POST COMPANY
SECOND: The respective names of the County and of the City within the
County in which the registered office of the Company is to be located in the
State of Delaware are the County of New Castle and the City of Wilmington. The
name of the registered agent of the Company is The Corporation Trust Company.
The street and number of said registered office and the address by street and
number of said registered agent is 1209 Orange Street, in the City of
Wilmington.
THIRD: The nature of the business of the Company and the objects and
purposes to be transacted, promoted or carried on by it are as follows:
(1) To publish any newspaper owned by the Company as an independent
newspaper dedicated to the welfare of the community and the nation, in
keeping with the principles of a free press; and
(2) To engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State of
Delaware.
Notwithstanding any provision of this Certificate of Incorporation, the
Company shall not have power to carry on the business of constructing,
maintaining or operating public utilities within the State of Delaware; nor
shall anything herein be deemed to authorize the Company to carry on any
business or exercise any power in any state, district, territory, possession
or country which under the laws thereof the Company may not lawfully carry on
or exercise.
FOURTH: The total number of shares of all classes of stock which the
Company shall have authority to issue is 48,000,000, consisting of 1,000,000
shares of Preferred Stock, par value $1.00 per share (hereinafter called the
Preferred Stock), 7,000,000 shares of Class A Common Stock, par value $1.00
per share (hereinafter called the Class A Stock), and 40,000,000 shares of
Class B Common Stock, par value $1.00 per share (hereinafter called the Class
B Stock, and the Class A Stock and the Class B Stock being hereinafter
collectively called the Common Stock).
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, of each class of stock of
the Company which are fixed by this Certificate of Incorporation, and the
express grant of authority to the Board of Directors to fix by resolution or
resolutions the designations, and the powers, preferences and rights, and the
qualifications, limitations or
restrictions thereof, of the Preferred Stock which are not fixed by this
Certificate of Incorporation, are as follows:
A. Preferred Stock
(1) Shares of Preferred Stock may be issued from time to time in one or
more series, each such series to have such distinctive designation as shall be
stated and expressed in the resolution or resolutions adopted by the Board of
Directors providing for the initial issuance of shares of such series, and
authority is expressly vested in the Board of Directors, by such resolution or
resolutions providing for the initial issuance of shares of each series:
(a) To fix the distinctive designation of such series and the number
of shares which shall constitute such series, which number may be
increased or decreased (but not below the number of shares thereof then
outstanding) from time to time by action of the Board of Directors;
(b) To fix (i) the dividend rate of such series, (ii) any
limitations, restrictions or conditions on the payment of dividends,
including whether dividends shall be cumulative and, if so, from which
date or dates, (iii) the relative rights of priority, if any, of payment
of dividends on shares of that series and (iv) the form of dividends,
which shall be payable either (A) in cash only, or (B) in stock only, or
(C) partly in cash and partly in stock, or (D) in stock or, at the
option of the holder, in cash (and in such case to prescribe the terms
and conditions of exercising such option), and to make provision in case
of dividends payable in stock for adjustment of the dividend rate in
such events as the Board of Directors shall determine;
(c) To fix the price or prices at which, and the terms and
conditions on which, the shares of such series may be redeemed by the
Company;
(d) To fix the amount or amounts payable upon the shares of such
series in the event of any liquidation, dissolution or winding up of the
Company and the relative rights of priority, if any, of payment upon
shares of such series;
(e) To determine whether or not the shares of such series shall be
entitled to the benefit of a sinking fund to be applied to the purchase
or redemption of such series and, if so entitled, the amount of such
fund and the manner of its application;
(f) To determine whether or not the shares of such series shall be
made convertible into, or exchangeable for, shares of any other class or
classes of stock of the Company or shares of any other series of
Preferred Stock, and, if made so convertible or exchangeable, the
conversion price or prices, or the rate or rates of exchange, and the
adjustments thereof, if any, at which such conversion or exchange may be
made, and any other terms and conditions of such conversion or exchange;
(g) To determine whether or not the shares of such series shall have
any voting powers and, if voting powers are so granted, the extent of
such voting powers; provided, however, that so long as any Class A Stock
shall be outstanding the holders of the Class A Stock shall always have
the absolute right under all conditions and circumstances to elect a
majority of the directors; and provided, further, that the voting powers
of all shares of Preferred Stock on all matters other than the election
of directors shall be limited (except as otherwise provided by statute)
to the right to vote pari passu with the holders of Class B Stock on
such matters as the holders of the Class B Stock shall be entitled to
vote. Subject to the foregoing and except as otherwise provided by
statute, the holders of shares of Preferred Stock, as such holders,
shall not have any right to vote in the election of directors or for any
other purpose; and such holders shall not be entitled to notice of any
meeting of stockholders at which they are not entitled to vote;
(h) To determine whether or not the issue of any additional shares
of such series or of any other series in addition to such series shall
be subject to restrictions in addition to the restrictions, if any, on
the issue of additional shares imposed in the resolution or resolutions
fixing the terms of any outstanding series of Preferred Stock
theretofore issued pursuant to this Section A and, if subject to
additional restrictions, the extent of such additional restrictions; and
(i) Generally to fix the other rights, and any qualifications,
limitations or restrictions of such rights, of such series; provided,
however, that no such rights, qualifications, limitations or
restrictions shall be in conflict with this Certificate of Incorporation
or any amendment hereof.
(2) Before any dividends shall be declared or paid or any distribution
ordered or made upon the Common Stock (other than a dividend payable in Common
Stock), the Company shall comply with the dividend and sinking fund
provisions, if any, of any resolution or resolutions providing for the issue
of any series of Preferred Stock any shares of which shall at the time be
outstanding. Subject to the foregoing sentence, the holders of Common Stock
shall be entitled, to the exclusion of the holders of Preferred Stock of any
and all series, to receive such dividends as from time to time may be declared
by the Board of Directors.
(3) Upon any liquidation, dissolution or winding up of the Company, the
holders of Preferred Stock of each series shall be entitled to receive the
amounts to which such holders are entitled as fixed with respect to such
series, including all dividends accumulated to the date of final distribution,
before any payment or distribution of assets of the Company shall be made to
or set apart for the holders of Common Stock; and after such payments shall
have been made in full to the holders of Preferred Stock, the holders of
Common Stock shall be entitled to receive any and all assets remaining to be
paid or distributed to stockholders and the holders of Preferred Stock shall
not be entitled to share therein. For the purposes of this paragraph, the
voluntary sale, conveyance, lease, exchange or transfer of all or
substantially all the property or assets of the Company or a consolidation or
merger of the Company with one or more other corporations (whether or not the
Company is the corporation surviving such consolidation or merger) shall not
be deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary.
(4) Subject to such limitations (if any) as may be fixed by the Board of
Directors with respect to such series of Preferred Stock in accordance with
paragraph (1) of this Section A, Preferred Stock of each series may be
redeemed at any time in whole or from time to time in part, at the option of
the Company, by vote of the Board of Directors, at the redemption price
thereof fixed in accordance with said paragraph (1). If less than all the
outstanding shares of Preferred Stock of such series are to be redeemed, the
shares to be redeemed shall be determined in such manner as the Board of
Directors shall prescribe. At such time or times prior to the date fixed for
redemption as the Board of Directors shall determine, written notice shall be
mailed to each holder of record of shares to be redeemed, in a postage prepaid
envelope addressed to such holder at his address as shown by the records of
the Company, notifying such holder of the election of the Company to redeem
such shares and stating the date fixed for the redemption thereof and calling
upon such holder to surrender to the Company on or after said date, at a place
designated in such notice, his certificate or certificates representing the
number of shares specified in such notice of redemption. On and after the date
fixed in such notice of redemption, each holder of shares of Preferred Stock
to be redeemed shall present and surrender his certificate or certificates for
such shares to the Company at the place designated in such notice and
thereupon the redemption price of such shares shall be paid to or on the order
of the person whose name appears on the records of the Company as the holder
of the shares designated for redemption. In case less than all the shares
represented by any such certificate are redeemed a new certificate shall be
issued representing the unredeemed shares. From and after the date fixed in
any such notice as the date of redemption (unless default shall be made by the
Company in payment of the redemption price) all dividends on the shares of
Preferred Stock designated for redemption in such notice shall cease to accrue
and all rights of the holders thereof as stockholders of the Company, other
than to receive the redemption price, shall terminate and such shares shall
not thereafter be transferred (except with the consent of the Company) on the
books of the Company and such shares shall not be deemed to be outstanding for
any purpose whatsoever. At any time after the mailing of any such notice of
redemption the Company may deposit the redemption price of the shares
designated therein for redemption with a bank or trust company in the Borough
of Manhattan, City and State of New York, or in the City of Washington, D. C.,
having capital and surplus of at least $25,000,000, in trust for the benefit
of the respective holders of
the shares designated for redemption but not yet redeemed. From and after the
making of such deposit the sole right of the holders of such shares shall be
the right either to receive the redemption price of such shares on and after
such redemption date, or, in the case of shares having conversion rights, the
right to convert the same at any time at or before the earlier of the close of
business on such redemption date or such prior date and time at which the
right to convert shall have expired; and except for these rights, the shares
of Preferred Stock so designated for redemption shall not be deemed to be
outstanding for any purpose whatsoever.
(5) Shares of any series of Preferred Stock which have been redeemed
(whether through the operation of a sinking fund or otherwise) or purchased by
the Company, or which, if convertible, have been converted into shares of
stock of the Company of any other class or classes, may, upon appropriate
filing and recording to the extent required by law, have the status of
authorized and unissued shares of Preferred Stock and may be reissued as a
part of such series or of any other series of Preferred Stock, subject to such
limitations (if any) as may be fixed by the Board of Directors with respect to
such series of Preferred Stock in accordance with paragraph (1) of this
Section A.
B. Common Stock
(1) Except as otherwise provided by (a) the Board of Directors in fixing
the voting rights of any series of the Preferred Stock in accordance with
Section A of this Article FOURTH, (b) this Section B or (c) statute, voting
power in the election of directors and for all other purposes shall be vested
exclusively in the holders of Class A Stock. Any director elected by the
holders of Class A Stock (and any successor to such director) shall be subject
to removal without cause and to replacement from time to time by the
affirmative vote or written consent of the holders of a majority of the
outstanding shares of Class A Stock. Every holder of stock of a class entitled
to vote upon a matter shall be entitled to one vote for each share of stock of
such class standing in his name upon the books of the Company. Except as
otherwise provided by this Section B and by Section C of this Article FOURTH,
there shall be no distinction whatever between the rights accorded to the
holders of Class A Stock and Class B Stock.
(2) Holders of Class B Stock shall be entitled to vote as specified
below:
(a) with regard to the election of directors, holders of Class B
Stock shall be entitled, voting separately as a class, to elect 30
percent of the directors (rounding the number of such directors to the
next highest whole number if such percentage is not equal to a whole
number of directors) and no more, to remove any director elected by the
holders of Class B Stock (and any successor to such director) and, in
the manner provided in the by-laws of the Company, to replace any
director so removed; and
(b) upon the following transactions, but only to the extent that any
national securities exchange on which the Class B Stock shall be listed
shall require a vote of the Class B Stock as a condition to the listing
on such exchange of the shares to be issued in such transaction, the
holders of Class B Stock shall be entitled to vote as a separate class,
and the holders of any series of Preferred Stock which shall be entitled
to vote thereon shall be entitled to vote together with the holders of
Class B Stock as a separate class; provided, however, that if any such
vote by the holders of Class B Stock shall be required as provided in
this paragraph (b), the holders of Class A Stock, in addition to their
powers under any other provision of this Article FOURTH, shall be
entitled to vote thereon separately as a class, and in such event
approval under this paragraph (b) shall require the affirmative vote of
each such class:
(i) the reservation of any shares of capital stock of the
Company for issuance upon the exercise of options granted or to be
granted to officers, directors or key employees; and
(ii) the acquisition of the stock or assets of another company
if either:
a. any director, officer or holder of 10% or more of the
shares of any class of voting stock of the Company has an
interest, directly or indirectly, in the company or assets to
be acquired or in the consideration to be paid in the
transaction;
b. the issuance or potential issuance of Common Stock
and/or securities convertible into Common Stock in the
transaction could result in an increase of 20% or more in the
aggregate outstanding shares of Common Stock; or
c. the aggregate market value of the Common Stock issuable
or potentially issuable and of any other consideration to be
paid in the transaction equals 20% or more of the aggregate
market value of the shares of Common Stock outstanding
immediately prior to the transaction.
If at any time there shall not be any Class A Stock outstanding, the
provisions of this Certificate of Incorporation which provide limited and
separate voting rights for the holders of the Class B Stock shall cease to be
of any effect, and such holders shall thereafter have general voting power in
the election of directors and in all other matters upon which stockholders of
the Company are entitled to vote pursuant to this Certificate of
Incorporation, the by-laws of the Company or statute.
(3) A holder of shares of Class A Stock shall be entitled at any time
and from time to time to convert any or all such shares held by him into
shares of Class B Stock in the ratio of one share of Class B Stock for one
share of Class A Stock. Each conversion of shares of Class A Stock into shares
of Class B Stock made pursuant to the provisions of this paragraph (3) shall
be effected by the surrender of the certificate representing the shares to be
converted at the office of the Secretary of the Company (or at such additional
place or places as may from time to time be designated by the Secretary or any
Assistant Secretary of the Company) in such form and accompanied by all stock
transfer tax stamps, if any, as shall be requisite for such transfer, and upon
such surrender the holder of such shares shall be entitled to become, and
shall be registered on the books of the Company as, the holder of the number
of shares of Class B Stock issuable upon such conversion, and each such share
of Class A Stock shall be converted into one share of Class B Stock, as the
Class B Stock shall then be constituted, and thereupon there shall be issued
and delivered to such holder or other named person, as the case may be,
promptly at such office or other designated place, a certificate or
certificates for such number of shares of Class B Stock.
(4) Upon the affirmative vote or the written consent of the holders of a
majority of the outstanding shares of Class A Stock, all or any part of the
entire class of outstanding Class A Stock shall be converted, effective upon
the date specified in such vote or consent, into shares of Class B Stock in
the ratio of one share of Class B Stock for one share of Class A Stock. Any
conversion pursuant to this paragraph (4) of less than all the outstanding
shares of Class A Stock shall be effected through the conversion of an equal
percentage of such shares held by each holder of Class A Stock (including any
holder who shall not have given his affirmative vote or written consent). Any
fractional share of Class A Stock resulting from the application of such
percentage shall not be eliminated and shall exist as a fractional share of
Class A Stock and the holder thereof shall be entitled to exercise voting
rights, to receive dividends thereon, to participate in any of the assets of
the Company in the event of liquidation and to all other rights in respect of
Class A Stock to the extent of such fractional share; but any fractional share
of Class B Stock shall be eliminated and in lieu thereof the Company shall
issue scrip or pay cash as provided in paragraph (5) of this Section B. Upon
the effective date of any conversion pursuant to this paragraph (4),
certificates representing the shares of Class A Stock so converted shall
thereafter represent a like number of shares of Class B Stock, and each holder
thereof shall be registered on the books of the Company as the record holder
of such number of shares of Class B Stock. Upon presentation and surrender of
said certificates at the office of the Secretary of the Company (or at such
additional place or places as may from time to time be designated by the
Secretary or any Assistant Secretary of the Company) the Company shall issue
or cause to be issued certificates representing the whole number of shares of
Class B Stock resulting from such conversion, and shall issue scrip or pay
cash in lieu of any fractional share eliminated upon such conversion, and
shall issue or cause to be issued certificates representing the number of
whole shares and any fractional shares of Class A Stock remaining after such
conversion.
(5) Fractional shares of Class A Stock shall be issued upon and in
connection with any conversion, split-up, merger, consolidation,
reclassification, stock dividend or other change in so far as the same shall
affect Class A Stock. A certificate for a fractional share of Class A Stock so
issued shall entitle the holder to exercise voting rights, to receive
dividends thereon, to participate in any of the assets of the Company in the
event of liquidation and to all other rights in respect of Class A Stock to
the extent of such fractional share. No fractional share of stock of any other
class of the Company now or hereafter authorized shall be issuable upon or in
connection with any other conversion, split-up, merger, consolidation,
reclassification, stock dividend or change involving stock of such other
class; in lieu of any such fractional share, the person entitled to an
interest in respect of such a fractional share shall be entitled, as
determined from time to time by the Board of Directors, to either (i) a scrip
certificate for such fractional share with such terms and conditions as the
Board of Directors shall prescribe or (ii) the cash equivalent of any such
fractional share based upon the market value of shares of such class at the
date on which rights in respect of any such fractional share shall accrue, as
determined in good faith by the Board of Directors.
(6) Subject to the prior rights of the holders of the Preferred Stock
contained in this Article FOURTH, when and as dividends are declared, whether
payable in cash, in property or in shares of stock of the Company (except as
hereinafter provided in this paragraph (6)), the holders of Class A Stock and
the holders of Class B Stock shall be entitled to share equally, share for
share, in such dividends. A dividend payable in shares of Class A Stock to the
holders of Class A Stock and in shares of Class B Stock to the holders of
Class B Stock shall be deemed to be shared equally among both classes. No
dividends shall be declared or paid in shares of Class A Stock except to
holders of Class A Stock, but dividends may be declared and paid, as
determined by the Board of Directors, in shares of Class B Stock to all
holders of Common Stock.
(7) In the event of any liquidation, dissolution or winding up of the
Company, either voluntary or involuntary, after payment shall have been made
to the holders of the Preferred Stock of the full amount to which they shall
be entitled pursuant to paragraph (3) of Section A of this Article FOURTH, the
holders of Common Stock shall be entitled, to the exclusion of the holders of
the Preferred Stock of any and all series, to share, ratably according to the
number of shares of Common Stock held by them, in all remaining assets of the
Company available for distribution to its stockholders.
C. Issuance of Stock; Negation of Preemptive Rights
Without the affirmative vote or written consent of the holders of a
majority of the outstanding shares of Class A Stock, the Company shall not
issue or sell any shares of Class A Stock or any obligation or security that
shall be convertible into, or exchangeable for, or entitle the holder thereof
to subscribe for or purchase, any shares of Class A Stock. Except as expressly
provided in this Section C or as the Board of Directors in its discretion may
by resolution determine, no holder of stock of the Company of any class shall
have any right to subscribe for or purchase any shares of stock of the Company
of any class now or hereafter authorized or any obligations or securities
which the Company may hereafter issue or sell that shall be convertible into,
or exchangeable for, or entitle the holders thereof to subscribe for or
purchase, any shares of any such class of stock of the Company.
D. Rights or Options
Subject to Section C of this Article FOURTH, the Company shall have the
power to create and issue, whether or not in connection with the issue and
sale of any shares of stock or other securities of the Company, rights or
options entitling the holders thereof to purchase from the Company any shares
of its capital stock of any class or classes at the time authorized, such
rights or options to be evidenced by or in such instrument or instruments as
shall be approved by the Board of Directors. The terms upon which, the time or
times, which may be limited or unlimited in duration, at or within which, and
the price or prices at which any such rights or options may be issued and any
such shares may be purchased from the Company upon the exercise of any such
right or option shall be such as shall be fixed and stated in a resolution or
resolutions adopted by the Board of Directors providing for the creation and
issue of such rights or options, and, in every case, set forth or incorporated
by reference in the instrument or instruments evidencing such
rights or options. In the absence of actual fraud in the transaction, the
judgment of the Board of Directors as to the consideration for the issuance of
such rights or options and the sufficiency thereof shall be conclusive.
E. Unclaimed Dividends
Any and all right, title, interest and claim in or to any dividends
declared, or other distributions made, by the Company, whether in cash, stock
or otherwise, which are unclaimed by the stockholder entitled thereto for a
period of three years after the close of business on the payment date, shall
be and be deemed to be extinguished and abandoned; and such unclaimed
dividends or other distributions in the possession of the Company, its
transfer agents or other agents or depositories shall at such time become the
absolute property of the Company, free and clear of any and all claims of any
persons or other entities whatsoever.
FIFTH: The private property of the stockholders of the Company shall not
be subject to the payment of corporate debts to any extent whatsoever.
SIXTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder of this corporation
or on the application of any receiver or receivers appointed for this
corporation under the provisions of Section 291 of Title 8 of the Delaware
Code or on the application of trustees in dissolution or of any receiver or
receivers appointed for this corporation under the provisions of Section 279
of Title 8 of the Delaware Code order a meeting of the creditors or class of
creditors and/or of the stockholders or class of stockholders of this
corporation, as the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing three-fourths in value of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to any compromise
or arrangement and to any reorganization of this corporation as consequence of
such compromise or arrangement, the said compromise or arrangement and the
said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of stockholders, of this
corporation, as the case may be, and also on this corporation.
SEVENTH: In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the Board of Directors, subject to the
provisions of this Certificate of Incorporation, is expressly authorized and
empowered:
(a) To make, alter, amend or repeal the by-laws of the Company in
any manner not inconsistent with the laws of the State of Delaware or
this Certificate of Incorporation, subject to the power of the
stockholders to amend, alter or repeal the by-laws made by the Board of
Directors or to limit or restrict the power of the Board of Directors so
to make, alter, amend or repeal the by-laws; provided, however, that so
long as any Class A Stock shall remain outstanding the minimum number of
directors shall be the lowest number required for the holders of Class A
Stock to have the absolute power under all conditions and circumstances
to elect a majority of the directors.
(b) Subject to the applicable provisions of the by-laws, to
determine, from time to time, whether and to what extent and at what
times and places and under what conditions and regulations the accounts
and books and documents of the Company, or any of them, shall be open to
the inspection of the stockholders, and no stockholder shall have any
right to inspect any account or book or document of the Company, except
as conferred by the laws of the State of Delaware, unless and until
authorized so to do by resolution adopted by the Board of Directors or
the stockholders of the Company entitled to vote in respect thereof.
(c) Without the assent or vote of the stockholders, to authorize and
issue obligations of the Company, secured or unsecured, to include
therein such provisions as to redeemability, convertibility or
otherwise, as the Board of Directors in its sole discretion may
determine, and to authorize the
mortgaging or pledging, as security therefor, of any property of the
Company, real or personal, including after-acquired property.
(d) To fix and determine, and to vary the amount of, the working
capital of the Company; to determine whether any, and if any, what part
of any, accumulated profits shall be declared in dividends and paid to
the stockholders; to determine the time or times for the declaration and
payment of dividends; to direct and to determine the use and disposition
of any surplus or net profits over and above the capital stock paid in;
and in its discretion the Board of Directors may use or apply any such
surplus or accumulated profits in the purchase or acquiring of bonds or
other pecuniary obligations of the Company to such extent, in such
manner and upon such terms as the Board of Directors may deem expedient.
(e) To sell, lease or otherwise dispose of, from time to time, any
part or parts of the properties of the Company and to cease to conduct
the business connected therewith or again to resume the same, as it may
deem best.
In addition to the powers and authorities hereinbefore or by statute
expressly conferred upon it, the Board of Directors may exercise all such
powers and do all such acts and things as may be exercised or done by the
Company, subject, nevertheless, to the provisions of the laws of the State of
Delaware, of this Certificate of Incorporation and of the by-laws of the
Company.
EIGHTH: No contract or transaction between the Company and one or more
of its directors or officers, or between the Company and any other
corporation, partnership, association or other organization in which one or
more of its directors or officers are directors or officers or have a
financial interest, shall be void or voidable solely for such reason, or
solely because such director or officer is present at or participates in the
meeting of the Board of Directors or committee thereof which authorizes such
contract or transaction, or solely because such director is counted in
determining the presence of a quorum at such meeting and votes upon the
authorization of such contract or transaction, if (a) the material facts as to
such director's or officer's relationship or interest and as to the contract
or transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or the committee in good faith
authorizes the contract or transaction by the affirmative vote of a majority
of the disinterested members thereof, even though such disinterested members
be less than a quorum, or (b) the material facts as to such director's or
officer's relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of such
stockholders, or (c) the contract or transaction is fair as to the Company as
of the time it is authorized, approved or ratified by the Board of Directors,
a committee thereof, or the stockholders. Common or interested directors may
be counted in determining the presence of a quorum at a meeting of the Board
of Directors or of a committee which authorizes the contract or transaction.
NINTH: Limitation of Liability; Indemnification.
A. Limitation of Directors' Liability.
To the fullest extent that the General Corporation Law of the State of
Delaware, as it exists on the date hereof or as it may hereafter be amended,
permits the limitation or elimination of the liability of directors, no
director of the Company shall be liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director. No amendment to
or repeal of this Section A of this Article shall apply to or have any effect
on the liability or alleged liability of any director of the Company for or
with respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
B. Indemnification.
1. Right to Indemnification. The Company shall to the fullest extent
permitted by applicable law as then in effect indemnify any person (the
"Indemnitee") who was or is involved in any manner (including, without
limitation, as a party or witness) or is threatened to be made so involved in
any threatened, pending
or completed investigation, claim, action, suit or proceeding, whether civil,
criminal, administrative or investigative (including, without limitation, any
action, suit or proceeding by or in the right of the Company to procure a
judgment in its favor) (a "Proceeding") by reason of the fact that he is or
was a director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise (including, without limitation, any employee benefit plan) against
all expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
Proceeding. Such indemnification shall be a contract right and shall include
the right to receive payment in advance of any expenses incurred by the
Indemnitee in connection with such Proceeding, consistent with the provisions
of applicable law as then in effect.
2. Insurance, Contracts and Funding. The Company may purchase and
maintain insurance to protect itself and any Indemnitee against any expenses,
judgments, fines and amounts paid in settlement as specified in Section B-1 of
this Article or incurred by any Indemnitee in connection with any Proceeding
referred to in Section B-1 of this Article, to the fullest extent permitted by
applicable law as then in effect. The Company may enter into contracts with
any director, officer, employee or agent of the Company in furtherance of the
provisions of this Article and may create a trust fund, grant a security
interest or use other means (including, without limitation, a letter of
credit) to ensure the payment of such amounts as may be necessary to effect
indemnification as provided in this Article.
3. Indemnification Not Exclusive Right. The right of indemnification
provided in this Article shall not be exclusive of any other rights to which
those seeking indemnification may otherwise be entitled, and the provisions of
this Article shall inure to the benefit of the heirs and legal representatives
of any person entitled to indemnity under this Article and shall be applicable
to proceedings commenced or continuing after the adoption of this Article,
whether arising from acts or omissions occurring before or after such
adoption.
4. Advancement of Expenses; Procedures; Presumptions and Effects of
Certain Proceedings; Remedies. In furtherance but not in limitation of the
foregoing provisions, the following procedures, presumptions and remedies
shall apply with respect to advancement of expenses and the right to
indemnification under this Article:
(a) Advancement of Expenses. All reasonable expenses incurred by or on
behalf of an Indemnitee in connection with any Proceeding shall be advanced to
the Indemnitee by the Company within 20 days after the receipt by the Company
of a statement or statements from the Indemnitee requesting such advance or
advances from time to time, whether prior to or after final disposition of
such Proceeding. Such statement or statements shall reasonably evidence the
expenses incurred by the Indemnitee and, if required by law at the time of
such advance, shall include or be accompanied by an undertaking by or on
behalf of the Indemnitee to repay the amounts advanced if it should ultimately
be determined that the Indemnitee is not entitled to be indemnified against
such expenses pursuant to this Article.
(b) Procedure for Determination of Entitlement to Indemnification. (i)
To obtain indemnification under this Article, an Indemnitee shall submit to
the Secretary of the Company a written request, including such documentation
as is reasonably available to the Indemnitee and reasonably necessary to
determine whether and to what extent the Indemnitee is entitled to
indemnification (the "Supporting Documentation"). The determination of the
Indemnitee's entitlement to indemnification shall be made not later than 60
days after receipt by the Company of the written request for indemnification
together with the Supporting Documentation. The Secretary of the Company
shall, promptly upon receipt of such a request for indemnification, advise the
Board of Directors in writing that the Indemnitee has requested
indemnification.
(ii) The Indemnitee's entitlement to indemnification under this Article
shall be determined in one of the following ways: (A) by a majority vote of
the Disinterested Directors (as hereinafter defined), if they constitute a
quorum of the Board of Directors; (B) by a written opinion of Independent
Counsel (as hereinafter defined) if a quorum of the Board of Directors
consisting of Disinterested Directors is not
obtainable or, even if obtainable, a majority of such Disinterested Directors
so directs; (C) by the stockholders of the Company entitled to vote (but only
if a majority of the Disinterested Directors, if they constitute a quorum of
the Board of Directors, presents the issue of entitlement to indemnification
to such stockholders for their determination); or (D) as provided in Section
B-4(c) of this Article.
(iii) In the event the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to Section B-4(b)(ii) of this
Article, a majority of the Disinterested Directors shall select the
Independent Counsel, but only an Independent Counsel to which the Indemnitee
does not reasonably object.
(c) Presumptions and Effect of Certain Proceedings. Except as otherwise
expressly provided in this Article, the Indemnitee shall be presumed to be
entitled to indemnification under this Article upon submission of a request
for indemnification together with the Supporting Documentation in accordance
with Section B-4(b)(i), and thereafter the Company shall have the burden of
proof to overcome that presumption in reaching a contrary determination. In
any event, if the person or persons empowered under Section B-4(b) of this
Article to determine entitlement to indemnification shall not have been
appointed or shall not have made a determination within 60 days after the
receipt by the Company of the request therefor together with the Supporting
Documentation, the Indemnitee shall be entitled to indemnification unless (A)
the Indemnitee misrepresented or failed to disclose a material fact in making
the request for indemnification or in the Supporting Documentation or (B) such
indemnification is prohibited by law. The termination of any Proceeding
described in Section B-1, or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, adversely affect the right of the
Indemnitee to indemnification or create a presumption that the Indemnitee did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Company or, with respect to any
criminal Proceeding, that the Indemnitee had reasonable cause to believe that
his conduct was unlawful.
(d) Remedies of Indemnitee. (i) In the event that a determination is
made pursuant to Section B-4(b) of this Article that the Indemnitee is not
entitled to indemnification under this Article, (A) the Indemnitee shall be
entitled to seek an adjudication of his entitlement to such indemnification
either, at the Indemnitee's sole option, in (x) an appropriate court of the
State of Delaware or any other court of competent jurisdiction or (y) an
arbitration to be conducted by a single arbitrator pursuant to the rules of
the American Arbitration Association; (B) any such judicial proceeding or
arbitration shall be de novo and the Indemnitee shall not be prejudiced by
reason of such adverse determination; and (C) in any such judicial proceeding
or arbitration the Company shall have the burden of proving that the
Indemnitee is not entitled to indemnification under this Article.
(ii) If a determination shall have been made or deemed to have been
made, pursuant to Section B-4(b) or (c), that the Indemnitee is entitled to
indemnification, the Company shall be obligated to pay the amounts
constituting such indemnification within five days after such determination
has been made or deemed to have been made and shall be conclusively bound by
such determination unless (A) the Indemnitee misrepresented or failed to
disclose a material fact in making the request for indemnification or in the
Supporting Documentation or (B) such indemnification is prohibited by law. In
the event that (C) advancement of expenses is not timely made pursuant to
Section B-4(a) or (D) payment of indemnification is not made within five days
after a determination of entitlement to indemnification has been made or
deemed to have been made pursuant to Section B-4(b) or (c), the Indemnitee
shall be entitled to seek judicial enforcement of the Company's obligation to
pay to the Indemnitee such advancement of expenses or indemnification.
Notwithstanding the foregoing, the Company may bring an action, in an
appropriate court of the State of Delaware or any other court of competent
jurisdiction, contesting the right of the Indemnitee to receive
indemnification hereunder due to the occurrence of an event described in
subclause (A) or (B) of this clause (ii) (a "Disqualifying Event"); provided,
however, that in any such action the Company shall have the burden of proving
the occurrence of such Disqualifying Event.
(iii) The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section B-4(d) that the
procedures and presumptions of this Article are not
valid, binding and enforceable and shall stipulate in any such court or before
any such arbitrator that the Company is bound by all the provisions of this
Article.
(iv) In the event that the Indemnitee, pursuant to this Section B-4(d),
seeks a judicial adjudication of or an award in arbitration to enforce his
rights under, or to recover damages for breach of, this Article, the
Indemnitee shall be entitled to recover from the Company, and shall be
indemnified by the Company against, any expenses actually and reasonably
incurred by him if the Indemnitee prevails in such judicial adjudication. If
it shall be determined in such judicial adjudication or arbitration that the
Indemnitee is entitled to receive part but not all of the indemnification or
advancement of expenses sought, the expenses incurred by the Indemnitee in
connection with such judicial adjudication or arbitration shall be prorated
accordingly.
(e) Definitions. For purposes of this Section B-4:
(i) "Disinterested Director" means a director of the Company who is
not or was not a party to the Proceeding in respect of which
indemnification is sought by the Indemnitee.
(ii) "Independent Counsel" means a law firm or a member of a law
firm that neither presently is, nor in the past five years has been,
retained to represent (A) the Company or the Indemnitee in any matter
material to either such party or (B) any other party to the Proceeding
giving rise to a claim for indemnification under this Article.
Notwithstanding the foregoing, the term "Independent Counsel" shall not
include any person who, under the applicable standards of professional
conduct then prevailing under the law of the State of Delaware, would
have a conflict of interest in representing either the Company or the
Indemnitee in an action to determine the Indemnitee's rights under this
Article.
5. Severability. If any provision or provisions of this Article shall be
held to be invalid, illegal or unenforceable for any reason whatsoever: (a)
the validity, legality and enforceability of the remaining provisions of this
Article (including, without limitation, all portions of any paragraph of this
Article containing any such provision held to be invalid, illegal or
unenforceable that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby; and (b) to the fullest extent
possible, the provisions of this Article (including, without limitation, all
portions of any paragraph of this Article containing any such provision held
to be invalid, illegal or unenforceable that are not themselves invalid,
illegal or unenforceable) shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or unenforceable.
TENTH: To the extent deemed necessary or appropriate by the Board of
Directors to enable the Company to engage in any business or activity directly
or indirectly conducted by it in compliance with the laws of the United States
of America as now in effect or as they may hereafter from time to time be
amended, the Company may adopt such by-laws as may be necessary or advisable
to comply with the provisions and avoid the prohibitions of any such law.
Without limiting the generality of the foregoing, such by-laws may restrict or
prohibit the transfer of shares of capital stock of the Company to, and the
voting of such stock by, aliens or their representatives, or corporations
organized under the laws of any foreign country or their representatives, or
corporations directly or indirectly controlled by aliens or by any such
corporation or representative.
ELEVENTH: The Company reserves the right at any time and from time to
time to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation in the manner now or hereafter prescribed by law,
and all rights, preferences and privileges of whatsoever nature conferred upon
stockholders, directors or any other persons whomsoever by and pursuant to
this Certificate of Incorporation in its present form or as hereinafter
amended are granted subject to the right reserved in this Article ELEVENTH.
Exhibit 3.2
CERTIFICATE OF DESIGNATION
of
SERIES A PREFERRED STOCK
of
THE WASHINGTON POST COMPANY
(formerly known as TWPC, INC.)
Pursuant to Section 151(g) of the General Corporation Law of the
State of Delaware, THE WASHINGTON POST COMPANY, formerly known as TWPC, INC.
(the "Company"), a corporation organized and existing under the General
Corporation Law of the State of Delaware, in accordance with the provisions of
Section 103 thereof, DOES HEREBY CERTIFY:
That, pursuant to the authority conferred upon the Board of
Directors of the Company by Article Fourth of the Certificate of Incorporation
of the Company, the Board of Directors of the Company, adopted the following
resolution creating a series of Preferred Stock of the Company designated as
Series A Preferred Stock:
RESOLVED, that, pursuant to the authority vested in the Board of
Directors of the Company in accordance with the provisions of Article Fourth
of the Amended and Restated Certificate of Incorporation of the Company, a
series of Preferred Stock of the Company is hereby created and that the
designation and number of shares thereof and the voting powers, preferences
and relative, participating, optional and other special rights of the shares
of such series, and the qualifications, limitations or restrictions thereof
are as follows:
2
SECTION 1. Designation and Number of Shares. The shares of such
series shall be designated as "Series A Preferred Stock", par value $1.00 per
share. The number of shares initially constituting the Series A Preferred
Stock shall be 23,000. The number of authorized shares of Preferred Stock of
the Company and of Series A Preferred Stock may be increased or decreased (but
not below the number of shares thereof then outstanding) pursuant to the
Certificate of Incorporation of the Company and the General Corporation Law of
the State of Delaware without the affirmative vote of the holders of the
outstanding shares of Series A Preferred Stock.
SECTION 2. Dividends. Subject to the prior and superior rights of
the holders of shares of any series of Preferred Stock of the Company or other
class of stock of the Company hereafter authorized which shall rank prior and
superior to the shares of Series A Preferred Stock with respect to dividends,
the holders of shares of the Series A Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors, out of the assets
of the Company legally available therefor, quarterly dividends payable in cash
on February 15, May 15, August 15 and November 15 of each year, or such other
dates as the Board of Directors shall approve, in the amount of $20.00 per
share (or a pro rata reduced amount if such shares have not been issued and
outstanding for an entire quarter). Each such dividend shall be paid to the
holders of record of shares of Series A Preferred Stock as they appear on the
stock register of the Company on such record date, not exceeding 60 days
preceding the payment date thereof, as shall be fixed by the Board of
Directors. Dividends on account of arrears for any past dividend periods may
be declared and paid at any time, without reference to any regular dividend
payment date, to holders of record on such date, not exceeding 60 days
preceding the payment date thereof, as may be fixed by the Board of Directors
of the Company. Holders of Series A Preferred Stock shall not be entitled to
any dividend, whether payable in cash, property or stock, in excess of full
cumulative dividends as provided herein. No interest, or sum of money in lieu
of interest, shall be payable in respect of any dividend payment or payments
on the Series A Preferred Stock which may be in arrears.
SECTION 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall not have any voting
3
rights, either general or special, except as provided in Section 10 hereof and
as may otherwise be required by law.
SECTION 4. Certain Restrictions. (a) Whenever quarterly dividends
payable on shares of Series A Preferred Stock as provided in Section 2 are
payable but in arrears for any prior quarter, thereafter and until all accrued
and unpaid dividends, whether or not declared, on shares of Series A Preferred
Stock outstanding shall have been paid in full, the Company shall not, unless
full dividends (including any dividends in arrears) are contemporaneously
declared and paid on shares of Series A Preferred Stock
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock; provided,
that the Company may at any time redeem, purchase or otherwise acquire
shares of any such junior stock in exchange for, or out of the net cash
proceeds from the sale of, other shares of any such junior stock;
(ii) declare or pay dividends on or make any other distributions on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred
Stock, except dividends paid ratably on the Series A Preferred Stock and
all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares
are then entitled; or
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred
Stock; provided that the Company may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in exchange for shares
of any stock of the Company ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Series A Preferred
Stock;
provided that the Company may at any time declare dividends or distributions
paid in shares of, or options, warrants or rights to subscribe for or purchase
shares of, Common Stock
4
or any other stock of the Company ranking junior to the Series A Preferred
Stock as to dividends and upon liquidation, dissolution or winding up.
(b) The Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of stock of the
Company unless the Company could, under paragraph (a) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
SECTION 5. Liquidation, Dissolution or Winding Up. (a) Subject to
the prior and superior rights of the holders of shares of any series of
Preferred Stock or other class of stock of the Company hereafter authorized
which shall rank prior and superior to the shares of Series A Preferred Stock
upon liquidation, dissolution or winding up, the holders of the shares of
Series A Preferred Stock shall be entitled to receive and to be paid out of
the assets of the Company available for distribution to its stockholders, the
amount of $1,000.00 per share, plus an amount equal to the sum of all accrued
and unpaid dividends (whether or not earned or declared) for the then-current
dividend period and all dividend periods prior thereto, upon the liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary.
(b) Neither the sale of all or substantially all of the property and
assets of the Company, nor the merger or consolidation of the Company into or
with any other corporation nor the merger or consolidation of any other
corporation into or with the Company shall be deemed to be a dissolution,
liquidation or winding up, voluntary or involuntary, for the purposes of this
Section 5.
(c) After the payment to the holders of the shares of Series A
Preferred Stock of the full preferential amounts provided for in this Section
5, the holders of the Series A Preferred Stock, as such, shall have no right
or claim to any of the remaining assets of the Company.
(d) In the event the assets of the Company available for
distribution to the holders of shares of Series A Preferred Stock, upon any
dissolution, liquidation or winding up of the Company, whether voluntary or
involuntary, shall be insufficient to pay in full all amounts to which such
holders are entitled pursuant to paragraph (a) of this Section 5, no such
distribution shall
5
be made on account of any shares of any other series of Preferred Stock or
other class of stock of the Company ranking as to any such distribution on a
parity with the shares of Series A Preferred Stock upon such dissolution,
liquidation or winding up unless proportionate distributive amounts shall be
paid on account of the shares of Series A Preferred Stock, ratably, in
proportion to the full distributive amounts for which holders of all such
parity shares are respectively entitled upon such dissolution, liquidation or
winding up.
(e) Subject to the rights of the holders of the shares of any series
or class of stock ranking on a parity with or prior to the shares of Series A
Preferred Stock upon liquidation, dissolution or winding up, upon any
liquidation, dissolution or winding up of the Company, after payment shall
have been made in full to the holders of the shares of Series A Preferred
Stock as provided in this Section 5, but not prior thereto, any other series
or class of stock ranking junior to the shares of Series A Preferred Stock
upon liquidation, dissolution or winding up shall, subject to the respective
terms and provisions (if any) applying thereto, be entitled to receive any and
all assets remaining to be paid or distributed, and the holders of the shares
of Series A Preferred Stock shall not be entitled to share therein.
SECTION 6. Redemption. The shares of the Series A Preferred Stock
shall not be redeemable prior to October 1, 2015. On and after October 1,
2015, the Company, at its option, may redeem shares of the Series A Preferred
Stock, as a whole or in part, at any time or from time to time, at a
redemption price per share of $1,000.00 plus, in each case, accrued and unpaid
dividends thereon to the date fixed for redemption. The procedure for such
redemption shall be in accordance with the provisions of Article Fourth of the
Certificate of Incorporation of the Company. No interest, or sum of money in
lieu of interest, shall be payable in respect of the amounts otherwise payable
upon the redemption of any shares of Series A Preferred Stock not timely
redeemed by the holder thereof.
SECTION 7. No Conversion Rights. The holders of shares of the Series
A Preferred Stock shall not have any rights to convert such shares into or
exchange such shares for shares of any other class or of any other series of
any class of stock of the Company.
6
SECTION 8. Ranking; Right to Authorize Senior Series or Classes of
Stock. The Company shall have the right at any time and from time to time to
authorize and issue any series of Preferred Stock and other classes of stock
which shall rank prior and superior to the Series A Preferred Stock as to
dividends or as to the distribution of assets upon liquidation, dissolution or
winding up of the Company, or both. In the absence of a provision expressly
providing for such priority in the Certificate of Incorporation, as amended,
or the Certificate of Designation providing for such series or classes, as
applicable, all other series of Preferred Stock of the Company hereafter
issued and all series of all other classes of capital stock of the Company
hereafter authorized and issued which have a preference as to dividends or as
to the distribution of assets upon liquidation, dissolution or winding up of
the Company shall rank pari passu with the Series A Preferred Stock as to
dividends and as to the distribution of assets upon liquidation, dissolution
or winding up of the Company.
SECTION 9. Reacquired Shares. Any shares of Series A Preferred Stock
purchased, redeemed or otherwise acquired by the Company in any manner
whatsoever shall be retired and canceled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock, without designation as to series, until
such shares are once more designated as part of a particular series by the
Board pursuant to the provisions of Article Fourth of the Certificate of
Incorporation.
SECTION 10. Amendment. None of the powers, preferences and relative,
participating, optional and other special rights of the Series A Preferred
Stock as provided herein shall be amended in any manner which would alter or
change the powers, preferences, rights or privileges of the holders of Series
A Preferred Stock so as to affect them adversely without the affirmative vote
of the holders of a majority of the outstanding shares of Series A Preferred
Stock, voting as a separate class.
IN WITNESS WHEREOF, the Company has caused this Certificate to be
duly executed in its corporate name on this 22nd day of September, 2003.
7
THE WASHINGTON POST COMPANY,
By /s/ John B. Morse, Jr.
--------------------------
Name: John B. Morse, Jr.
Title: Vice President
[Seal]
Attest:
/s/ Diana M. Daniels
- ------------------------
Name: Diana M. Daniels
Title: Secretary
================================================================================
Exhibit 3.3
THE WASHINGTON POST COMPANY
Incorporated under the Laws of the State of Delaware
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
-----------
Effective as of September 22, 2003
================================================================================
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
of
WP COMPANY
Effective as of September 22, 2003
FIRST: The name of the corporation (hereinafter called the Company) is
WP COMPANY
SECOND: The respective names of the County and of the City within the
County in which the registered office of the Company is to be located in the
State of Delaware are the County of New Castle and the City of Wilmington. The
name of the registered agent of the Company is The Corporation Trust Company.
The street and number of said registered office and the address by street and
number of said registered agent is 1209 Orange Street, in the City of
Wilmington.
THIRD: The nature of the business of the Company and the objects and
purposes to be transacted, promoted or carried on by it are as follows:
(1) To publish any newspaper owned by the Company as an independent
newspaper dedicated to the welfare of the community and the nation, in
keeping with the principles of a free press; and
(2) To engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State of
Delaware.
Notwithstanding any provision of this Certificate of Incorporation, the
Company shall not have power to carry on the business of constructing,
maintaining or operating public utilities within the State of Delaware; nor
shall anything herein be deemed to authorize the Company to carry on any
business or exercise any power in any state, district, territory, possession
or country which under the laws thereof the Company may not lawfully carry on
or exercise.
FOURTH: The total number of shares of all classes of stock which the
Company shall have authority to issue is 1,000, consisting of 1,000 shares of
Common Stock, par value $1.00 per share (hereinafter called the Common Stock).
A. Common Stock
(1) Except as otherwise provided by (a) this Section A or (b) statute,
voting power in the election of directors and for all other purposes shall be
vested exclusively in the holders of Common Stock. Pursuant to Section 251(g)
of the Delaware General Corporation Law, any act or transaction involving the
Company, other than the election or removal of directors, that requires for
its adoption under the Delaware General Corporation Law or this Certificate of
Incorporation the approval of the holders of Common Stock shall also require
the approval of the holders of Class A Stock of The Washington Post Company,
formerly known as TWPC, Inc. (hereinafter called the Parent), by the same vote
as is required by the Delaware General Corporation Law or this Certificate of
Incorporation. Any director elected by the holders of Common Stock (and any
successor to such director) shall be subject to removal without cause and to
replacement from time to time by the affirmative vote or written consent of
the holders of a majority of the outstanding shares of Common Stock. Every
holder of stock of a class entitled to vote upon a matter shall be entitled to
one vote for each share of stock of such class standing in his name upon the
books of the Company.
(2) Pursuant to Section 251(g) of the Delaware General Corporation Law,
holders of Class B Stock of the Parent shall be entitled to vote upon the
following transactions with respect to the Company, but only to the extent
that any national securities exchange on which the Class B Stock of the Parent
shall be listed shall require a vote of the Class B Stock of the Parent as a
condition to the listing on such exchange of the shares to be issued in such
transaction if such transaction were with respect to the Parent and such
shares to be issued were shares of Class B Stock of the Parent, the holders of
Class B Stock of the Parent shall be entitled to vote as a separate class, and
the holders of any series of Preferred Stock of the Parent which shall be
entitled to vote thereon shall be entitled to vote together with the holders
of Class B Stock of the Parent as a separate class; provided, however, that if
any such vote by the holders of Class B Stock of the Parent shall be required
as provided in this paragraph (2), the holders of Class A Stock of the Parent
shall be entitled to vote thereon separately as a class, and in such event
approval under this paragraph (2) shall require the affirmative vote of each
such class:
(i) the reservation of any shares of capital stock of the
Company for issuance upon the exercise of options granted or to be
granted to officers, directors or key employees; and
(ii) the acquisition of the stock or assets of another company
if either:
a. any director, officer or holder of 10% or more of the
shares of any class of voting stock of the Company has an
interest, directly or indirectly, in the company or assets to
be acquired or in the consideration to be paid in the
transaction;
b. the issuance or potential issuance of Common Stock
and/or securities convertible into Common Stock in the
transaction could result in an increase of 20% or more in the
aggregate outstanding shares of Common Stock; or
c. the aggregate market value of the Common Stock issuable
or potentially issuable and of any other consideration to be
paid in the transaction equals 20% or more of the aggregate
market value of the shares of Common Stock outstanding
immediately prior to the transaction.
If at any time there shall not be any Class A Stock of the Parent outstanding,
the provisions of this Certificate of Incorporation which provide limited and
separate voting rights for the holders of the Class B Stock of the Parent
shall cease to be of any effect, and such holders shall thereafter have the
voting power, with respect to any act or transaction involving the Company,
accorded to the holders of the Class A Stock of the Parent by this Certificate
of Incorporation.
(3) Fractional shares of Common Stock shall be issued upon and in
connection with any conversion, split-up, merger, consolidation,
reclassification, stock dividend or other change in so far as the same shall
affect Common Stock. A certificate for a fractional share of Common Stock so
issued shall entitle the holder to exercise voting rights, to receive
dividends thereon, to participate in any of the assets of the Company in the
event of liquidation and to all other rights in respect of Common Stock to the
extent of such fractional share. No fractional share of stock of any other
class of the Company now or hereafter authorized shall be issuable upon or in
connection with any other conversion, split-up, merger, consolidation,
reclassification, stock dividend or change involving stock of such other
class; in lieu of any
such fractional share, the person entitled to an interest in respect of such a
fractional share shall be entitled, as determined from time to time by the
Board of Directors, to either (i) a scrip certificate for such fractional
share with such terms and conditions as the Board of Directors shall prescribe
or (ii) the cash equivalent of any such fractional share based upon the market
value of shares of such class at the date on which rights in respect of any
such fractional share shall accrue, as determined in good faith by the Board
of Directors.
(4) In the event of any liquidation, dissolution or winding up of the
Company, either voluntary or involuntary, the holders of Common Stock shall be
entitled to share, ratably according to the number of shares of Common Stock
held by them, in all remaining assets of the Company available for
distribution to its stockholders.
B. Issuance of Stock; Negation of Preemptive Rights
Without the affirmative vote or written consent of the holders of a
majority of the outstanding shares of Common Stock, the Company shall not
issue or sell any shares of Common Stock or any obligation or security that
shall be convertible into, or exchangeable for, or entitle the holder thereof
to subscribe for or purchase, any shares of Common Stock. Except as expressly
provided in this Section B or as the Board of Directors in its discretion may
by resolution determine, no holder of stock of the Company of any class shall
have any right to subscribe for or purchase any shares of stock of the Company
of any class now or hereafter authorized or any obligations or securities
which the Company may hereafter issue or sell that shall be convertible into,
or exchangeable for, or entitle the holders thereof to subscribe for or
purchase, any shares of any such class of stock of the Company.
C. Rights or Options
Subject to Section B of this Article FOURTH, the Company shall have the
power to create and issue, whether or not in connection with the issue and
sale of any shares of stock or other securities of the Company, rights or
options entitling the holders thereof to purchase from the Company any shares
of its capital stock of any class or classes at the time authorized, such
rights or options to be evidenced by or in such instrument or instruments as
shall be approved by the Board of Directors. The terms upon which, the time or
times, which may be limited or unlimited in duration, at or within which, and
the price or prices at which any such rights or options may be issued and any
such shares may be purchased from the Company upon the exercise of any such
right or option shall be such as shall be fixed and stated in a resolution or
resolutions adopted by the Board of Directors providing for the creation and
issue of such rights or options, and, in every case, set forth or incorporated
by reference in the instrument or instruments evidencing such rights or
options. In the absence of actual fraud in the transaction, the judgment of
the Board of Directors as to the consideration for the issuance of such rights
or options and the sufficiency thereof shall be conclusive.
D. Unclaimed Dividends
Any and all right, title, interest and claim in or to any dividends
declared, or other distributions made, by the Company, whether in cash, stock
or otherwise, which are unclaimed by the stockholder entitled thereto for a
period of three years after the close of business on the payment date, shall
be and be deemed to be extinguished and abandoned; and such unclaimed
dividends or other distributions in the possession of the Company, its
transfer agents or other agents or depositories shall at such time become the
absolute property of the Company, free and clear of any and all claims of any
persons or other entities whatsoever.
FIFTH: The private property of the stockholders of the Company shall not
be subject to the payment of corporate debts to any extent whatsoever.
SIXTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way
of this corporation or of any creditor or stockholder of this corporation or
on the application of any receiver or receivers appointed for this corporation
under the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this corporation under the provisions of Section 279 of Title 8
of the Delaware Code order a meeting of the creditors or class of creditors
and/or of the stockholders or class of stockholders of this corporation, as
the case may be, to be summoned in such manner as the said court directs. If a
majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of
this corporation, as the case may be, agree to any compromise or arrangement
and to any reorganization of this corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or
on all the stockholders or class of stockholders, of this corporation, as the
case may be, and also on this corporation.
SEVENTH: In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the Board of Directors, subject to the
provisions of this Certificate of Incorporation, is expressly authorized and
empowered:
(a) To make, alter, amend or repeal the by-laws of the Company in
any manner not inconsistent with the laws of the State of Delaware or
this Certificate of Incorporation, subject to the power of the
stockholders to amend, alter or repeal the by-laws made by the Board of
Directors or to limit or restrict the power of the Board of Directors so
to make, alter, amend or repeal the by-laws; provided, however, that so
long as any Class A Stock shall remain outstanding the minimum number of
directors shall be the lowest number required for the holders of Class A
Stock to have the absolute power under all conditions and circumstances
to elect a majority of the directors.
(b) Subject to the applicable provisions of the by-laws, to
determine, from time to time, whether and to what extent and at what
times and places and under what conditions and regulations the accounts
and books and documents of the Company, or any of them, shall be open to
the inspection of the stockholders, and no stockholder shall have any
right to inspect any account or book or document of the Company, except
as conferred by the laws of the State of Delaware, unless and until
authorized so to do by resolution adopted by the Board of Directors or
the stockholders of the Company entitled to vote in respect thereof.
(c) Without the assent or vote of the stockholders, to authorize and
issue obligations of the Company, secured or unsecured, to include
therein such provisions as to redeemability, convertibility or
otherwise, as the Board of Directors in its sole discretion may
determine, and to authorize the mortgaging or pledging, as security
therefor, of any property of the Company, real or personal, including
after-acquired property.
(d) To fix and determine, and to vary the amount of, the working
capital of the Company; to determine whether any, and if any, what part
of any, accumulated profits shall be declared in dividends and paid to
the stockholders; to determine the time or times for the declaration and
payment of dividends; to direct and to determine the use and disposition
of any surplus or net profits over and above the capital stock paid in;
and in its discretion the Board of Directors may use or apply any such
surplus or accumulated profits in the purchase or acquiring of bonds or
other pecuniary obligations of the Company to such extent, in such
manner and upon such terms as the Board of Directors may deem expedient.
(e) To sell, lease or otherwise dispose of, from time to time, any
part or parts of the properties of the Company and to cease to conduct
the business connected therewith or again to resume the same, as it may
deem best.
In addition to the powers and authorities hereinbefore or by statute
expressly conferred upon it, the Board of Directors may exercise all such
powers and do all such acts and things as may be exercised or
done by the Company, subject, nevertheless, to the provisions of the laws of
the State of Delaware, of this Certificate of Incorporation and of the by-laws
of the Company.
EIGHTH: No contract or transaction between the Company and one or more of
its directors or officers, or between the Company and any other corporation,
partnership, association or other organization in which one or more of its
directors or officers are directors or officers or have a financial interest,
shall be void or voidable solely for such reason, or solely because such
director or officer is present at or participates in the meeting of the Board
of Directors or committee thereof which authorizes such contract or
transaction, or solely because such director is counted in determining the
presence of a quorum at such meeting and votes upon the authorization of such
contract or transaction, if (a) the material facts as to such director's or
officer's relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the
Board of Directors or the committee in good faith authorizes the contract or
transaction by the affirmative vote of a majority of the disinterested members
thereof, even though such disinterested members be less than a quorum, or (b)
the material facts as to such director's or officer's relationship or interest
and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of such stockholders, or (c) the
contract or transaction is fair as to the Company as of the time it is
authorized, approved or ratified by the Board of Directors, a committee
thereof, or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
NINTH: Limitation of Liability; Indemnification.
A. Limitation of Directors' Liability.
To the fullest extent that the General Corporation Law of the State of
Delaware, as it exists on the date hereof or as it may hereafter be amended,
permits the limitation or elimination of the liability of directors, no
director of the Company shall be liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director. No amendment to
or repeal of this Section A of this Article shall apply to or have any effect
on the liability or alleged liability of any director of the Company for or
with respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
B. Indemnification.
1. Right to Indemnification. The Company shall to the fullest extent
permitted by applicable law as then in effect indemnify any person (the
"Indemnitee") who was or is involved in any manner (including, without
limitation, as a party or witness) or is threatened to be made so involved in
any threatened, pending or completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative
(including, without limitation, any action, suit or proceeding by or in the
right of the Company to procure a judgment in its favor) (a "Proceeding") by
reason of the fact that he is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise (including, without limitation, any employee benefit
plan) against all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such Proceeding. Such indemnification shall be a contract
right and shall include the right to receive payment in advance of any
expenses incurred by the Indemnitee in connection with such Proceeding,
consistent with the provisions of applicable law as then in effect.
2. Insurance, Contracts and Funding. The Company may purchase and
maintain insurance to protect itself and any Indemnitee against any expenses,
judgments, fines and amounts paid in settlement as specified in Section B-1 of
this Article or incurred by any Indemnitee in connection with any Proceeding
referred to in Section B-1 of this Article, to the fullest extent permitted by
applicable law as then in effect. The Company may enter into contracts with
any director, officer, employee or agent of the Company in furtherance of the
provisions of this Article and may create a trust fund, grant a security
interest or use
other means (including, without limitation, a letter of credit) to ensure the
payment of such amounts as may be necessary to effect indemnification as
provided in this Article.
3. Indemnification Not Exclusive Right. The right of indemnification
provided in this Article shall not be exclusive of any other rights to which
those seeking indemnification may otherwise be entitled, and the provisions of
this Article shall inure to the benefit of the heirs and legal representatives
of any person entitled to indemnity under this Article and shall be applicable
to proceedings commenced or continuing after the adoption of this Article,
whether arising from acts or omissions occurring before or after such
adoption.
4. Advancement of Expenses; Procedures; Presumptions and Effects of
Certain Proceedings; Remedies. In furtherance but not in limitation of the
foregoing provisions, the following procedures, presumptions and remedies
shall apply with respect to advancement of expenses and the right to
indemnification under this Article:
(a) Advancement of Expenses. All reasonable expenses incurred by or on
behalf of an Indemnitee in connection with any Proceeding shall be advanced to
the Indemnitee by the Company within 20 days after the receipt by the Company
of a statement or statements from the Indemnitee requesting such advance or
advances from time to time, whether prior to or after final disposition of
such Proceeding. Such statement or statements shall reasonably evidence the
expenses incurred by the Indemnitee and, if required by law at the time of
such advance, shall include or be accompanied by an undertaking by or on
behalf of the Indemnitee to repay the amounts advanced if it should ultimately
be determined that the Indemnitee is not entitled to be indemnified against
such expenses pursuant to this Article.
(b) Procedure for Determination of Entitlement to Indemnification. (i) To
obtain indemnification under this Article, an Indemnitee shall submit to the
Secretary of the Company a written request, including such documentation as is
reasonably available to the Indemnitee and reasonably necessary to determine
whether and to what extent the Indemnitee is entitled to indemnification (the
"Supporting Documentation"). The determination of the Indemnitee's entitlement
to indemnification shall be made not later than 60 days after receipt by the
Company of the written request for indemnification together with the
Supporting Documentation. The Secretary of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board of Directors
in writing that the Indemnitee has requested indemnification.
(ii) The Indemnitee's entitlement to indemnification under this Article
shall be determined in one of the following ways: (A) by a majority vote of
the Disinterested Directors (as hereinafter defined), if they constitute a
quorum of the Board of Directors; (B) by a written opinion of Independent
Counsel (as hereinafter defined) if a quorum of the Board of Directors
consisting of Disinterested Directors is not obtainable or, even if
obtainable, a majority of such Disinterested Directors so directs; (C) by the
stockholders of the Company entitled to vote (but only if a majority of the
Disinterested Directors, if they constitute a quorum of the Board of
Directors, presents the issue of entitlement to indemnification to such
stockholders for their determination); or (D) as provided in Section B-4(c) of
this Article.
(iii) In the event the determination of entitlement to indemnification is
to be made by Independent Counsel pursuant to Section B-4(b)(ii) of this
Article, a majority of the Disinterested Directors shall select the
Independent Counsel, but only an Independent Counsel to which the Indemnitee
does not reasonably object.
(c) Presumptions and Effect of Certain Proceedings. Except as otherwise
expressly provided in this Article, the Indemnitee shall be presumed to be
entitled to indemnification under this Article upon submission of a request
for indemnification together with the Supporting Documentation in accordance
with Section B-4(b)(i), and thereafter the Company shall have the burden of
proof to overcome that presumption in reaching a contrary determination. In
any event, if the person or persons empowered under Section B-4(b) of this
Article to determine entitlement to indemnification shall not have been
appointed or shall not have made a determination within 60 days after the
receipt by the Company of the request therefor
together with the Supporting Documentation, the Indemnitee shall be entitled
to indemnification unless (A) the Indemnitee misrepresented or failed to
disclose a material fact in making the request for indemnification or in the
Supporting Documentation or (B) such indemnification is prohibited by law. The
termination of any Proceeding described in Section B-1, or of any claim, issue
or matter therein, by judgment, order, settlement or conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, adversely
affect the right of the Indemnitee to indemnification or create a presumption
that the Indemnitee did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal Proceeding, that the Indemnitee had
reasonable cause to believe that his conduct was unlawful.
(d) Remedies of Indemnitee. (i) In the event that a determination is made
pursuant to Section B-4(b) of this Article that the Indemnitee is not entitled
to indemnification under this Article, (A) the Indemnitee shall be entitled to
seek an adjudication of his entitlement to such indemnification either, at the
Indemnitee's sole option, in (x) an appropriate court of the State of Delaware
or any other court of competent jurisdiction or (y) an arbitration to be
conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association; (B) any such judicial proceeding or arbitration shall
be de novo and the Indemnitee shall not be prejudiced by reason of such
adverse determination; and (C) in any such judicial proceeding or arbitration
the Company shall have the burden of proving that the Indemnitee is not
entitled to indemnification under this Article.
(ii) If a determination shall have been made or deemed to have been made,
pursuant to Section B-4(b) or (c), that the Indemnitee is entitled to
indemnification, the Company shall be obligated to pay the amounts
constituting such indemnification within five days after such determination
has been made or deemed to have been made and shall be conclusively bound by
such determination unless (A) the Indemnitee misrepresented or failed to
disclose a material fact in making the request for indemnification or in the
Supporting Documentation or (B) such indemnification is prohibited by law. In
the event that (C) advancement of expenses is not timely made pursuant to
Section B-4(a) or (D) payment of indemnification is not made within five days
after a determination of entitlement to indemnification has been made or
deemed to have been made pursuant to Section B-4(b) or (c), the Indemnitee
shall be entitled to seek judicial enforcement of the Company's obligation to
pay to the Indemnitee such advancement of expenses or indemnification.
Notwithstanding the foregoing, the Company may bring an action, in an
appropriate court of the State of Delaware or any other court of competent
jurisdiction, contesting the right of the Indemnitee to receive
indemnification hereunder due to the occurrence of an event described in
subclause (A) or (B) of this clause (ii) (a "Disqualifying Event"); provided,
however, that in any such action the Company shall have the burden of proving
the occurrence of such Disqualifying Event.
(iii) The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section B-4(d) that the
procedures and presumptions of this Article are not valid, binding and
enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Article.
(iv) In the event that the Indemnitee, pursuant to this Section B-4(d),
seeks a judicial adjudication of or an award in arbitration to enforce his
rights under, or to recover damages for breach of, this Article, the
Indemnitee shall be entitled to recover from the Company, and shall be
indemnified by the Company against, any expenses actually and reasonably
incurred by him if the Indemnitee prevails in such judicial adjudication. If
it shall be determined in such judicial adjudication or arbitration that the
Indemnitee is entitled to receive part but not all of the indemnification or
advancement of expenses sought, the expenses incurred by the Indemnitee in
connection with such judicial adjudication or arbitration shall be prorated
accordingly.
(e) Definitions. For purposes of this Section B-4:
(i) "Disinterested Director" means a director of the Company who is
not or was not a party to the Proceeding in respect of which
indemnification is sought by the Indemnitee.
(ii) "Independent Counsel" means a law firm or a member of a law
firm that neither presently is, nor in the past five years has been,
retained to represent (A) the Company or the Indemnitee in any matter
material to either such party or (B) any other party to the Proceeding
giving rise to a claim for indemnification under this Article.
Notwithstanding the foregoing, the term "Independent Counsel" shall not
include any person who, under the applicable standards of professional
conduct then prevailing under the law of the State of Delaware, would
have a conflict of interest in representing either the Company or the
Indemnitee in an action to determine the Indemnitee's rights under this
Article.
5. Severability. If any provision or provisions of this Article shall be
held to be invalid, illegal or unenforceable for any reason whatsoever: (a)
the validity, legality and enforceability of the remaining provisions of this
Article (including, without limitation, all portions of any paragraph of this
Article containing any such provision held to be invalid, illegal or
unenforceable that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby; and (b) to the fullest extent
possible, the provisions of this Article (including, without limitation, all
portions of any paragraph of this Article containing any such provision held
to be invalid, illegal or unenforceable that are not themselves invalid,
illegal or unenforceable) shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or unenforceable.
TENTH: To the extent deemed necessary or appropriate by the Board of
Directors to enable the Company to engage in any business or activity directly
or indirectly conducted by it in compliance with the laws of the United States
of America as now in effect or as they may hereafter from time to time be
amended, the Company may adopt such by-laws as may be necessary or advisable
to comply with the provisions and avoid the prohibitions of any such law.
Without limiting the generality of the foregoing, such by-laws may restrict or
prohibit the transfer of shares of capital stock of the Company to, and the
voting of such stock by, aliens or their representatives, or corporations
organized under the laws of any foreign country or their representatives, or
corporations directly or indirectly controlled by aliens or by any such
corporation or representative.
ELEVENTH: The Company reserves the right at any time and from time to
time to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation in the manner now or hereafter prescribed by law,
and all rights, preferences and privileges of whatsoever nature conferred upon
stockholders, directors or any other persons whomsoever by and pursuant to
this Certificate of Incorporation in its present form or as hereinafter
amended are granted subject to the right reserved in this Article ELEVENTH.
Exhibit 3.4
================================================================================
THE WASHINGTON POST COMPANY
(formerly known as TWPC, INC.)
Incorporated under the Laws of the State of Delaware
AMENDED AND RESTATED
BY-LAWS
--------------
Effective September 22, 2003
================================================================================
AMENDED AND RESTATED
BY-LAWS
of
THE WASHINGTON POST COMPANY
(formerly known as TWPC, INC.)
-----------
ARTICLE I
OFFICES
SECTION 1.01. Registered Office. The registered office of The
Washington Post Company (formerly known as TWPC, Inc. and hereinafter called
the Company) in the State of Delaware shall be in the City of Wilmington,
County of New Castle, and the registered agent in charge thereof shall be The
Corporation Trust Company.
SECTION 1.02. Other Offices. The Company may have such other offices
in such places, either within or without the State of Delaware, as the Board
of Directors (hereinafter called the Board) may from time to time determine or
the business of the Company may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.01. Place of Meeting. All meetings of the stockholders of
the Company shall be held at such place or places, within or without the State
of Delaware, as may from time to time be fixed by the Board or as shall be
specified or fixed in the respective notices or waivers of notice thereof.
SECTION 2.02. Annual Meetings. The annual meeting of the
stockholders for the election of directors and for the transaction of any
other proper business as may come before the meeting shall be held on such
date and at such time as shall be designated by the Board. If any annual
meeting shall not be held on the date designated therefore
or if the directors shall not have been elected thereat or at any ad-
journment thereof, the Board shall cause a special meeting of the stockholders
for the election of directors to be held as soon thereafter as may be
convenient.
SECTION 2.03. Special Meetings. A special meeting of the stock-
holders for any purpose or purposes may be called at any time by the Chairman
of the Board or the President or by order of the Board, and shall be called by
the Secretary upon the written request of stock- holders holding of record at
least a majority of the outstanding shares of stock of the Company entitled to
vote at such meeting.
SECTION 2.04. Notice of Meetings. Except as otherwise provided by
law, notice of each meeting of the stockholders, whether annual or special,
shall be given not less than 10 nor more than 60 days before the date of the
meeting to each stockholder of record entitled to vote at such meeting, by
delivering a written or printed notice thereof to him personally, or by
mailing such notice in a postage prepaid envelope directed to the stockholder
at his address as it appears on the records of the Company. Every notice of a
meeting of stockholders shall state the place, date and hour of the meeting
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called. Except where expressly required by law, no publication of
any notice of a meeting of stockholders shall be required. Notice of any
adjourned meeting of stockholders shall not be required to be given if (i) the
time and place thereof are announced at the meeting at which the adjournment
is taken, (ii) the adjourned meeting is held within 30 days thereafter and
(iii) a new record date for the adjourned meeting is not fixed after the
adjournment.
SECTION 2.05. Quorum. Except as otherwise provided by law or the
Certificate of Incorporation, at each meeting of the stockholders the holders
of record of a majority of the issued and outstanding stock of the Company
entitled to vote at such meeting, present either in person or by proxy, shall
constitute a quorum for the transaction of business; provided, however, that
in any case where the holders of any class of stock or any series thereof are
entitled to vote as a class, a quorum of each class of stock or such series
thereof shall be separately determined. In the absence of a quorum, a majority
in interest of the stockholders of the Company present in person or by proxy
and entitled to vote at such meeting, or, in the absence of any stockholders
entitled to vote, any officer present at such meeting, shall have the
power to adjourn the meeting from time to time, until stockholders holding the
requisite amount of stock shall be present or represented. At any such
adjourned meeting at which a quorum shall be present any business may be
transacted which might have been transacted at the meeting as originally
called. The absence from any meeting in person or by proxy of stockholders
holding the number of shares of stock of the Company required by law, by the
Certificate of Incorporation or by these By-laws for action upon any given
matter shall not prevent action at such meeting upon any other matter or
matters which may properly come before the meeting if there shall be present
thereat in person or by proxy stockholders holding the number of shares of
stock of the Company required in respect of such other matter or matters.
SECTION 2.06. Voting. (a) Except as otherwise provided by law, the
Certificate of Incorporation or these By-laws, each stockholder shall be
entitled to one vote in person or by proxy on each matter for each share of
stock of the Company which shall be entitled to vote on such matter and which
shall be held by him and registered in his name on the books of the Company on
the date fixed pursuant to Section 7.04 as the record date for the
determination of stockholders entitled to notice of and to vote at the meeting
of stockholders, or to express consent to corporate action in writing without
a meeting, as the case may be.
(b) Shares of its own capital stock belonging to the Company, or to
another corporation if a majority of the shares entitled to vote in the
election of directors of such other corporation is held by the Company, shall
neither be entitled to vote nor counted for quorum purposes.f
(c) Persons holding stock of the Company in a fiduciary capacity shall be
entitled to exercise the voting rights of such stock so held. Persons whose
stock is pledged shall be entitled to exercise the voting rights of such
stock, unless in the transfer by the pledgor on the books of the Company he
shall have expressly empowered the pledgee to vote thereon, in which case only
the pledgee, or his proxy, may represent such stock and vote thereon.
(d) Stock having voting power standing of record in the names of two or
more persons, whether fiduciaries, members of a partnership, joint tenants,
tenants in common, tenants by the entirety or otherwise, or with respect to
which two or more persons have the same fiduciary relationship, shall be voted
in accordance with the provisions of the
General Corporation Law of the State of Delaware.
(e) Any vote upon any matter at a meeting of the stockholders by the
stockholder entitled to vote thereon, and any expression of consent or dissent
to corporate action without a meeting by the stockholder entitled to express
such consent or dissent, may be given in person or by his proxy appointed by
an instrument in writing subscribed by such stockholder or by his attorney
thereunto authorized, or appointed in any other manner permitted under the
General Corporation Law of the State of Delaware, as long as such instrument,
or a copy, facsimile telecommunication or other reliable reproduction of the
writing or transmission effecting such appointment, has been delivered to the
Secretary or, in the case of a vote at a meeting, to the secretary of the
meeting; provided, however, that no proxy shall be voted or acted upon after
three years from its date, unless said proxy shall provide for a longer
period. The attendance at any meeting of a stockholder who may theretofore
have given a proxy shall not have the effect of revoking the same unless he
shall in writing so notify the secretary of the meeting prior to the voting of
the proxy. At all meetings of the stockholders all matters, except as
otherwise provided in the Certifi-cate of Incorporation, in these By-laws or
by law, shall be decided by the vote of a majority in voting interest of the
stockholders present in person or by proxy and entitled to vote thereat and
thereon, a quorum being present. Except in the case of votes for the election
of directors, the vote at any meeting of the stockholders on any question need
not be by ballot, unless so directed by the chairman of the meeting. On a vote
by ballot each ballot shall be signed by the stockholder voting, or by his
proxy, and shall state the number and class of shares voted.
SECTION 2.07. List of Stockholders. It shall be the duty of the Secretary
or other officer of the Company who shall have charge of its stock ledger,
either directly or through another officer of the Company designated by him or
through a transfer agent or clerk appointed by the Board, to prepare and make,
at least 10 days before every meeting of the stockholders, a complete list of
the stockholders of each class entitled to vote thereat, arranged in
alphabetical order and showing the address of each stockholder and the number
and class of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least 10
days prior to the meeting, either at a place within the city where the meeting
is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be
held. Such list shall also be produced and kept at the time and place of said
meeting during the whole time thereof, and may be inspected by any stockholder
present thereat. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, such list or the books of
the Company, or to vote in person or by proxy at any meeting of stockholders.
SECTION 2.08. Inspectors of Votes. Before or at each meeting of the
stockholders the chairman of such meeting may appoint two Inspectors of Votes
to act thereat. Each Inspector of Votes so appointed shall first subscribe an
oath or affirmation faithfully to execute the duties of an Inspector of Votes
at such meeting with strict impartiality and according to the best of his
ability. Such Inspectors of Votes, if any, shall take charge of the ballots at
such meeting and after the balloting thereat on any question shall count the
ballots cast thereon and shall make a report in writing to the secretary of
such meeting of the results thereof. An Inspector of Votes need not be a
stockholder of the Company, and any director or officer of the Company may be
an Inspector of Votes on any question other than a vote for or against his
election to any position with the Company or on any other question in which he
may be directly interested.
SECTION 2.09. Consent of Stockholders in Lieu of Meeting. Anything in
these By-laws to the contrary notwithstanding, any action required by the
General Corporation Law of the State of Delaware to be, or which may be, taken
at any annual or special meeting of the stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed in person or by proxy by
the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted. Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented thereto in writing.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01. General Powers. The property, affairs and business of the
Company shall be managed by the Board.
SECTION 3.02. Number and Term of Office. Subject to the re- quirements of
law and the Certificate of Incorporation, the number of directors shall be
such number, not less than three, as shall be fixed from time to time by
resolution of the Board; provided, however, that so long as any Class A Common
Stock shall remain outstanding the minimum number of directors fixed by any
such resolution shall be sufficient to enable the holders of such stock to
elect a majority of the directors. If any person shall be nominated to serve
as a director at a time when there shall be outstanding more than one class or
series of stock entitled to vote on the election of directors, at the time of
such nomination there shall be specified the class or series of stock by which
such person is intended to be elected or, if elected, may be removed. At least
three-fourths of the persons serving as directors must be citizens of the
United States of America. Directors need not be stockholders. Each director
shall hold office until the annual meeting of the stockholders next following
his election and until his earlier death, resignation or removal in the manner
hereinafter provided.
SECTION 3.03. Quorum and Manner of Acting. Except as otherwise provided
by law, the Certificate of Incorporation or these By-laws, one- third of the
members of the Board shall be present in person at any meeting of the Board
(participation in a meeting by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other to constitute presence in person at such meeting)
in order to constitute a quorum for the transaction of business at such
meeting, and the vote of a majority of the directors present at any such
meeting at which a quorum is present shall be the act of the Board; provided,
however, that none of the officers of the Company shall as a member of the
Board have any vote in the determination of the amount that shall be paid to
him as a fixed salary. In the absence of a quorum from any such meeting, a
majority of the directors present thereat may adjourn such meeting from time
to time until a quorum shall be present thereat. Notice of any adjourned
meeting need not be given. The directors shall act only as a board and the
individual directors shall have no power as such.
SECTION 3.04. Place of Meetings. The Board may hold its meeting at such
place or places, within or without the State of Delaware, as the
Board may from time to time determine or as shall be designated in the
respective notices of meetings or waivers thereof.
SECTION 3.05. First Meeting. After each annual election of directors and
on the same day and at the same place, the Board may meet for the purpose of
organization, the election of officers and the transaction of other business.
Notice of such meeting need not be given. Such meeting may be held at any
other time or place which shall be specified in a notice given as hereinafter
provided for special meetings of the Board or in a consent and waiver of
notice thereof signed by all the directors.
SECTION 3.06. Regular Meetings. Regular meetings of the Board shall be
held at such places, within or without the State of Delaware, and at such
times as the Board shall by resolution determine. If any day fixed for a
regular meeting shall be a legal holiday at the place where the meeting is to
be held, then the meeting which would otherwise be held on that day shall be
held at said place at the same hour on the next succeeding business day not a
legal holiday. Notice of regular meetings need not be given.
SECTION 3.07. Special Meetings; Notice. Special meetings of the Board
shall be held whenever called by the Chairman of the Board or by the
President, or by the Secretary on the written request of a majority of the
directors at the time in office. Notice of each such meeting shall be mailed
to each director, addressed to him at his residence or usual place of
business, at least two days before the day on which the meeting is to be held,
or shall be sent to him at such place by telegram, cablegram or other
electronic transmission, or be delivered personally or by telephone, not later
than the day before the day on which the meeting is to be held. Each such
notice shall state the time and place of the meeting but need not state the
purpose thereof.
SECTION 3.08. Action by Consent. Any action required or permitted to be
taken at any meeting of the Board, or of any committee thereof, may be taken
without a meeting if all the members of the Board or of such committee, as the
case may be, consent thereto in writing or by electronic transmission, and
such writing or writings or electronic transmission or transmissions are filed
with the minutes of the proceedings of the Board or such committee. Such
filing shall be in
paper form if the minutes of the proceedings of the Board or such committee
are maintained in paper form and shall be in electronic form if such minutes
are maintained in electronic form.
SECTION 3.09. Resignation. Any director of the Company may resign at any
time by giving written notice to the Chairman of the Board, the President or
the Secretary. The resignation of any director shall take effect at the time
specified therein, or if the time when it shall become effective shall not be
specified therein then it shall take effect immediately upon its receipt by
the Chairman, the President or the Secretary; and unless otherwise specified
therein the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 3.10. Removal of Directors. Any director of the Company may be
removed, either with or without cause, at any time, by the affirmative vote of
a majority in interest of the stockholders of record of the Company who would
be entitled to vote on the election of such director, given at any special
meeting of such stockholders or in accordance with Section 2.09; and the
vacancy in the Board caused by any such removal may be filled by such
stockholders at such special meeting or in accordance with Section 2.09 or, if
not so filled, as otherwise provided in Section 3.11.
SECTION 3.11. Vacancies. Any vacancy in the Board caused by the death,
resignation, disqualification or removal of a director, or by an increase in
the number of directors, or any other cause, may, subject to Section 3.10, be
filled either by a majority vote of the remaining directors, though less than
a quorum, or by a sole remaining director, or by the stockholders of the
Company entitled to vote thereon at the next annual meeting or at any special
meeting called for the purpose, or in accordance with Section 2.09.
SECTION 3.12. Compensation. Unless otherwise expressly provided by
resolution adopted by the Board, neither any director nor any member of any
committee contemplated by these By-laws or otherwise provided for by
resolution of the Board shall, as such, receive any stated compensation for
his services; but the Board may at any time or from time to time by resolution
provide that a specified sum shall be paid to any director or to any member of
any such committee who shall not otherwise be in the employ of the Company or
any of its subsidiaries, either as his annual compensation as such director or
member or as compensation for his attendance at meetings of the Board or of
such committee. The Board may also likewise provide that the Company shall
reimburse each director or member of such committee for any expenses paid by
him on account of his attendance at any such meeting. Nothing in this Section
3.12 contained shall be construed to preclude any director from serving the
Company in any other capacity and receiving compensation therefor.
ARTICLE IV
COMMITTEES
SECTION 4.01. Executive Committee; Appointment; Powers; Resignation and
Removal of Members. The Board may by resolution designate not less than two
nor more than five directors, who shall include the Chairman of the Board and
the chief executive officer of the Company, to constitute an Executive
Committee that shall have and may exercise all the powers of the Board
delegable by law in the management of the business and affairs of the Company
to the extent provided in said resolution or in any other resolution adopted
by the Board, and shall have the power to authorize the seal of the Company to
be affixed to all papers which may require it. Such resolution may also
specify that the member or members of the Executive Committee present and not
disqualified from voting at a meeting of the Executive Committee, whether or
not he or they constitute a quorum, may unanimously appoint another member of
the Board to act at such meeting in place of any absent or disqualified
member. The Board shall designate in said resolution the Chairman of the Board
or the immediate past Chairman of the Board to be the Chairman of the
Executive Committee. Any member of the Executive Committee may at any time
resign by giving notice to the Chairman of the Executive Committee, the
Chairman of the Board, the President or the Secretary. The resignation of any
member of the Executive Committee shall take effect at the time specified
therein, or if the time when it shall become effective shall not be specified
therein then it shall take effect immediately upon its receipt by the Chairman
of the Executive Committee, the Chairman of the Board, the President or the
Secretary; and unless otherwise specified therein the acceptance of such
resignation shall not be necessary to make it effective. A majority of all the
members of the Executive Committee may fix its rules of procedure, determine
its actions and fix the time and place, whether
within or without the State of Delaware, of its meetings and specify what
notice thereof, if any, shall be given, unless the Board shall otherwise by
resolution provide. The Board shall have power to change the members of the
Executive Committee, other than the Chairman of the Board and the chief
executive officer of the Company, at any time, either with or without cause,
to fill vacancies in such membership and to discharge the Executive Committee,
either with or without cause, at any time.
SECTION 4.02. Other Committees. The Board may by resolution constitute
other committees which shall in each case consist of directors and, at the
discretion of the Board, officers who are not directors, and which shall have
and may exercise such powers as the Board may determine and specify in the
respective resolutions appointing them; provided, however, that (a) unless all
the members of any committee shall be directors, such committee shall not have
authority to exercise any of the powers of the Board in the management of the
business and affairs of the Company and (b) if any committee shall have the
power to determine the amounts of the respective fixed salaries of the
officers of the Company, or any of them, such committee shall consist of not
less than three members and none of its members shall have any vote in the
determination of the amount that shall be paid to him as a fixed salary. A
majority of all the members of any such committee may fix its rules of
procedure, determine its action and fix the time and place, whether within or
without the State of Delaware, of its meetings and specify what notice
thereof, if any, shall be given, unless the Board shall otherwise by
resolution provide. The Board shall have power to change the members of any
such committee at any time, to fill vacancies therein and to discharge any
such committee, either with or without cause, at any time.
ARTICLE V
OFFICERS
SECTION 5.01. Number. The officers of the Company shall be appointed by
the Board and may include a Chairman of the Board (who shall be chosen from
among the directors), a President, one or more Vice Presidents (one or more of
whom may be designated Executive Vice Presidents or Senior Vice Presidents), a
Secretary, a Treasurer and such other officers as may be so appointed. The
Board shall
designate one of the officers of the Company as the chief executive officer of
the Company.
SECTION 5.02. Election and Term of Office. The officers shall be elected
annually by the Board and each shall hold office until the next annual
election of officers and until his successor shall have been duly elected and
shall qualify or until his earlier death, resignation or removal in the manner
hereinafter provided. A vacancy in any office because of death, resignation,
removal or any other cause may be filled by the Board for the unexpired
portion of the term.
SECTION 5.03. Removal. Any officer may be removed, either with or without
cause, by the vote of a majority of the Board.
SECTION 5.04. Resignations. Any officer may resign at any time by giving
written notice of his resignation to the Chairman of the Board, the President
or the Secretary. Any such resignation shall take effect at the time specified
therein, or if the time when it shall become effective shall not be specified
therein then it shall take effect immediately upon its receipt by the Chairman
of the Board, the President or the Secretary; and unless otherwise specified
therein the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 5.05. Salaries. The salaries of the officers of the Company shall
be fixed from time to time by the Board or by any one or more committees (none
of which shall consist of less than three members, all of whom shall be
directors) appointed by resolution of the Board with power to fix such
salaries. None of such officers shall be prevented from receiving a salary by
reason of the fact that he is also a member of the Board or any such
committee, but no officer who shall also be a member of the Board or of any
such committee shall have any vote in the determination of the amount of
salary that shall be paid to him.
ARTICLE VI
CONTRACTS, INSTRUMENTS, BANK ACCOUNTS, ETC.
SECTION 6.01. Contracts or Other Instruments. Except as otherwise
provided by law or by these By-laws, any contract or other instrument relative
to the business of the Company may be executed and delivered
in the name of the Company and on its behalf by the Chairman of the Board, the
President, a Vice President, the Secretary or the Treasurer; and the Board may
authorize any other officer or agent of the Company to enter into any contract
or execute and deliver any contract or other instrument in the name and on
behalf of the Company, and such authority may be general or confined to
specific instances as the Board may by resolution determine. Unless authorized
so to do by these By-laws or by the Board, no officer, agent or employee shall
have any power or authority to bind the Company by any contract or engagement,
or to pledge its credit, or to render it liable pecuniarily for any purpose or
to any amount.
SECTION 6.02. Deposits. All funds of the Company not otherwise employed
shall be deposited from time to time to the credit of the Company or otherwise
as the Board or the Chairman of the Board or the President or the Treasurer
shall direct in such banks, trust companies or other depositaries as the Board
may select or as may be selected by any officer or agent of the Company to
whom power in that respect shall have been delegated by the Board. For the
purpose of deposit and for the purpose of collection for the account of the
Company, checks, drafts and other orders for the payment of money which are
payable to the order of the Company may be endorsed, assigned and delivered by
any officer or agent of the Company.
SECTION 6.03. General and Special Bank Accounts. The Board may from time
to time authorize the opening and keeping of general and special bank accounts
with such banks, trust companies or other depositaries as the Board may
select, or as may be selected by any officer or agent of the Company to whom
power in that respect shall have been delegated by the Board. The Board may
make such special rules and regulations with respect to such bank accounts,
not incon- sistent with the provisions of these By-laws, as it may deem
expedient.
SECTION 6.04. Loans. Unless the Board shall otherwise deter- mine, any
two of the following officers, to wit: the Chairman of the Board, the
President, any Vice President, the Treasurer and the Secre- tary, acting
together, may effect loans and advances at any time for the Company from any
bank, trust company or other institution or from any firm or individual, and
for such loans and advances may make, execute and deliver promissory notes or
other evidences of indebtedness of the Company, but no officer or officers
shall mortgage, pledge, hypothecate or otherwise transfer for security any
property
whatsoever owned or held by the Company except when authorized by resolution
adopted by the Board.
SECTION 6.05. Checks, Drafts, etc. All checks, drafts, orders for the
payment of money, bills of lading, warehouse receipts, obligations, bills of
exchange and insurance certificates shall be signed or endorsed (except
endorsements for collection for the account of the Company or for deposit to
its credit) by such officer or officers or agent or agents of the Company and
in such manner as shall from time to time be determined by resolution of the
Board.
SECTION 6.06. Proxies in Respect of Stock or Other Securities of Other
Corporations. The Chairman of the Board, the President, any Vice President or
the Secretary may from time to time appoint an attorney or attorneys or an
agent or agents of the Company to exercise, in the name and on behalf of the
Company, the powers and rights which the Company may have as the holder of
stock or other securities in any other corporation to vote or consent in
respect of such stock or other securities, and the Chairman of the Board, the
President, any Vice President or the Secretary may instruct the person or
persons so appointed as to the manner of exercising such powers and rights;
and the Chairman of the Board, the President, any Vice President or the
Secretary may execute or cause to be executed, in the name and on behalf of
the Company and under its corporate seal or otherwise, all such written
proxies or other instruments as he may deem necessary or proper in order that
the Company may exercise such powers and rights.
ARTICLE VII
CAPITAL STOCK
SECTION 7.01. Stock Certificates. Every stockholder shall be entitled to
have a certificate, in such form as the Board shall prescribe, signed in the
name of the Company by the Chairman of the Board, the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or
an Assistant Secretary, certifying the number and class of shares of stock of
the Company owned by him. If such certificate is countersigned (i) by a
transfer agent other than the Company or its employee or (ii) by a registrar
other than the Company or its employee, any other signature on the certificate
may be a facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
cease to be such officer, transfer agent or registrar before such certificate
is issued, it may be issued by the Company with the same effect as if he were
such officer, transfer agent or registrar at the date of issue. A record shall
be kept of the respective names of the persons, firms or corporations owning
the stock represented by certificates for stock of the Company, the number,
class and series of shares represented by such certificates respectively, and
the respective dates thereof, and in case of cancellation, the respective
dates of cancellation. Every certificate surrendered to the Company for
exchange or transfer shall be canceled and a new certificate or certificates
shall not be issued in exchange for any existing certificate until such
existing certificate shall have been so canceled, except in cases provided for
in Section 7.05.
SECTION 7.02. Transfer of Stock. Except as otherwise provided in the
Certificate of Incorporation, transfer of shares of stock of the Company shall
be made only on the books of the Company by the reg-istered holder thereof, or
by his attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary or with a transfer agent appointed pursuant to
Section 7.03, and upon surrender of the certificate or certificates for such
shares properly endorsed and payment of all taxes thereon. The person in whose
name shares of stock stand on the books of the Company shall be deemed the
owner thereof for all purposes as regards the Company. Whenever any transfer
of shares shall be made for collateral security and not absolutely, such fact
shall be so expressed in the entry of transfer if, when the certificate or
certificates shall be presented to the Company for transfer, both the
transferor and the transferee request the Company to do so. The Secretary or
such transfer agent shall inquire prior to the transfer of shares of stock of
the Company whether such stock is to be owned of record or voted by or on
behalf of an Alien (as defined in Section 7.06), shall maintain a record of
shares so owned or to be so voted, and shall not transfer any shares of stock
upon the books of the Company except in accordance with Section 7.06.
SECTION 7.03. Regulations. The Board may make such rules and regulations
as it may deem expedient, not inconsistent with these By-laws, concerning the
issue, transfer and registration of certificates for stock of the Company. The
Board may appoint, or authorize any officer or officers to appoint, one or
more transfer agents and one or more registrars, and may require all
certificates for stock to bear the signature or signatures of any of them.
SECTION 7.04. Fixing Date for Determination of Stockholders of Record. In
order that the Company may determine the stockholders entitled to notice of or
to vote at any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting, or entitled
to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any other change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board may fix, in advance, a record date, which shall not be more than 60
nor less than 10 days before the date of such meeting, nor more than 60 days
prior to any other action. If in any case involving the determination of
stockholders for any purpose other than notice of or voting at a meeting of
stockholders or expressing written consent to corporate action without a
meeting the Board shall not fix such a record date, the record date for
determining stockholders for such purpose shall be the close of business on
the day on which the Board shall adopt the resolution relating thereto. A
determination of stockholders entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board may fix a new record date for the adjourned meeting.
SECTION 7.05. Lost, Stolen, Destroyed or Mutilated Certificates. If the
owner of any stock of the Company shall notify the Company of any loss, theft,
destruction or mutilation of the certificate therefor, the Company may issue a
new certificate for stock in the place of any certificate theretofore issued
by it and alleged to have been lost, stolen or destroyed, or which shall have
been mutilated. The Board may, in its discretion, require the owner of the
lost, stolen, destroyed or mutilated certificate or his legal representatives
to give the Company a bond in such sum, limited or unlimited, and in such form
and with such surety or sureties, as the Board shall in its uncontrolled
discretion determine, to indemnify the Company against any claim that may be
made against it on account of the alleged loss, theft, destruction or
mutilation of any such certificate, or the issuance of such new certificate.
The Board may, however, in its discretion refuse to issue any such new
certificate except pursuant to legal proceedings under the laws of the State
of Delaware in such case made and provided.
SECTION 7.06. Ownership or Voting by Aliens. (a) As used in these
By-laws, the word "Alien" shall be construed to include the following and
their representatives: An individual not a citizen of the United States of
America; a partnership unless a majority of the partners are citizens of the
United States of America and have a majority interest in the partnership
profits; a foreign government; a corporation, joint-stock company or
association organized under the laws of a foreign country; and any other
corporation, joint-stock company or as- sociation directly or indirectly
controlled by one or more of the fore- going.
(b) Not more than one-fifth of the aggregate number of shares of voting
stock of the Company of any class outstanding shall at any time be owned of
record or voted by or for the account of Aliens.
(c) The ownership of record of shares of stock by or for the account of
Aliens, and the citizenship of transferees thereof, shall be determined in
conformity with regulations prescribed by the Board. There shall be maintained
separate stock records, a domestic record of shares of stock held by citizens
and a foreign record of shares of stock held by Aliens.
(d) Every certificate representing stock issued or transferred to an
Alien shall be marked "Foreign Share Certificate," but under no circumstances
shall certificates representing more than one-fifth of the aggregate number of
shares of voting stock of any class outstanding at any one time be so marked,
nor shall the total amount of voting stock represented by Foreign Share
Certificates, plus the amount of voting stock owned by or for the account of
Aliens and represented by certifi- cates not so marked, exceed one-fifth of
the aggregate number of shares of voting stock of any class outstanding. Every
certificate issued not marked "Foreign Share Certificate" shall be marked
"Domestic Share Certificate." Any stock represented by Foreign Share
Certificates may be transferred to either Aliens or non-Aliens.
(e) If, and so long as, the stock records of the Company shall disclose
that one-fifth of the outstanding shares of voting stock of any class is owned
by Aliens, no transfer of shares of such class repre- sented by Domestic Share
Certificates shall be made to Aliens, and if it shall be found by the Company
that stock represented by a Domestic Share Certificate is, in fact, held by or
for the account of an Alien, the holder of such stock shall not be entitled to
vote, to receive dividends or to have any other rights, except the right to
transfer such stock to a citizen of the United States of America.
(f) The Company shall not be owned or controlled directly or indi- rectly
by any other corporation of which any officer or more than one- fourth of the
directors are Aliens, or of which more than one-fourth of the stock is owned
of record or voted by Aliens.
(g) The Board may, at any time and from time to time, adopt such other
provisions as the Board may deem necessary or desirable to comply with the
provisions of Section 310(a) of the Federal Communications Act as now in
effect or as it may hereafter from time to time be amended, and to carry out
the provisions of this Section 7.06 and of Article TENTH of the Certificate of
Incorporation.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Seal. The Company shall have a corporate seal, which shall
be in the form of a circle and shall bear the name of the Company and words
and figures indicating the year and state in which the Company was
incorporated and such other words or figures as the Board may approve and
adopt.
SECTION 8.02. Fiscal Year. The fiscal year of the Company shall be as
determined by the Board of Directors.
SECTION 8.03. Waivers of Notice. Whenever notice is required to be given
by law, the Certificate of Incorporation or these By-laws, a written waiver
thereof, signed by the person entitled to such notice, or a waiver by
electronic transmission by the person entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to such notice.
Attendance of a person at a meeting shall constitute a waiver of notice of
such meeting except when the person attends the meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the stockholders, directors or members of a committee of directors
need be specified in any written waiver of notice or any waiver by electronic
transmission.
SECTION 8.04. Amendments. These By-laws, or any of them, may be altered,
amended or repealed, or new By-laws may be made, by the Board at any meeting
thereof or by the stockholders entitled to vote thereon at any annual or
special meeting thereof or in accordance with Section 2.09.
CERTIFICATE
The undersigned,
Secretary of The Washington Post Company., a Delaware corporation, does hereby
certify that the foregoing is a true copy of the Bylaws of the Company in effect
as of this date.
WITNESS my hand and the seal of the Company this day of , 20 .
-----------------------
Secretary
Exhibit 4.1
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of September 22, 2003
(this "Supplemental Indenture"), is by and among WP Company LLC (formerly
known as The Washington Post Company), a Delaware limited liability company
(the "Company"), The Washington Post Company (formerly known as TWPC, Inc.), a
Delaware corporation (the "Parent") and Bank One, NA, as successor to The
First National Bank of Chicago, as trustee (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company and the Trustee are parties to an indenture
dated as of February 17, 1999 (the "Indenture"), pursuant to which the
Company's outstanding 5.50% Notes due February 15, 2009 (the "Notes") are
issued, which Notes constitute "Securities" as that term is defined in the
Indenture;
WHEREAS, Section 1001 of the Indenture provides that the Company and
the Trustee may at any time or from time to time enter into a supplemental
indenture, without the consent of any Holder of the Securities, to, among
other things, evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company in
the Indenture and in the Securities;
WHEREAS, in connection with a corporate restructuring, the Company
is transferring substantially all of its assets and liabilities to the Parent
(the "Transfer");
WHEREAS, pursuant to Section 901 of the Indenture, in connection
with the Transfer, the Parent is required to execute and deliver to the
Trustee a supplemental indenture;
WHEREAS, pursuant to Section 901(1) of the Indenture, in connection
with the Transfer, the Parent is assuming, by and under this Supplemental
Indenture, all of the Company's obligations under the Indenture, including
obligations for the due and punctual payment of the principal of, premium, if
any, and interest on all the Securities and the performance or observance of
each covenant of the Indenture on the part of the Company to be performed or
observed;
WHEREAS, pursuant to Section 902 of the Indenture, upon completion
of the Transfer and the execution and delivery of this Supplemental Indenture,
the Parent shall succeed to, and be substituted for, and may exercise every
right and power of the Company under the Indenture as if the Parent had been
named as the Company in the Indenture, and the Company shall be discharged
from all liability under the Indenture and in respect of any Securities, other
than to the extent provided by the Subsidiary Guaranty (as defined below); and
WHEREAS, the Company and the Parent have complied with all
conditions precedent provided for in the Indenture relating to this
Supplemental Indenture.
NOW, THEREFORE, for and in consideration of the foregoing premises,
the Company, the Parent and the Trustee hereby agree for the equal and ratable
benefit of the Holders of the Securities as follows:
1. Capitalized Terms. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. Assumption by Parent. The Parent hereby assumes all of the
Company's obligations under the Indenture, including without limitation
obligations for the due and punctual payment of the principal of, premium, if
any, and interest on all Securities issued or to be issued pursuant to the
Indenture and the performance or observance of each other obligation and
covenant set forth in the Indenture to be performed or observed on the part of
the Issuer. Parent is hereby substituted for, and may exercise every right and
power of, the Company under the Indenture with the same effect as if Parent
had been named as the "Company" in the Indenture.
3. Discharge of Company. The Company is hereby discharged from all
liability under the Indenture and in respect of the Securities, other than to
the extent provided by the Subsidiary Guaranty (as defined below).
4. Trustee's Acceptance. The Trustee hereby accepts this
Supplemental Indenture and agrees to perform the same under the terms and
conditions set forth in the Indenture.
5. Effect of Supplemental Indenture. Upon the execution and delivery
of this Supplemental Indenture by the Company, the Parent and the Trustee, the
Indenture shall be supplemented and amended in accordance herewith, and this
Supplemental Indenture shall form a part of the Indenture for all purposes,
and every Holder of a Security heretofore or hereafter authenticated and
delivered under the Indenture shall be bound thereby.
6. Indenture Remains in Full Force and Effect. Except as
supplemented or amended hereby, all other provisions in the Indenture and the
Securities, to the extent not inconsistent with the terms and provisions of
this Supplemental Indenture, shall remain in full force and effect.
7. Incorporation of Indenture. All the provisions of this
Supplemental Indenture shall be deemed to be incorporated in, and made a part
of, the Indenture; and the Indenture, as supplemented and amended by this
Supplemental Indenture, shall be read, taken and construed as one and the same
instrument.
8. Subsidiary Guaranty. Concurrently with the execution of this
Supplemental Indenture, the Company shall execute a guaranty (the "Subsidiary
Guaranty"), substantially in the form of Exhibit A attached hereto, of the due
and punctual payment of the principal of, premium, if any, and interest on the
Notes. Such Subsidiary Guaranty shall remain in full force and effect with
respect to the Notes until such time as no Notes remain outstanding.
9. Notices. Any notice, request or communication by Parent or the
Trustee to the other is duly given if in writing and delivered in person,
mailed by first-class mail or by express delivery to the other's address, as
stated below:
The Washington Post Company
1150 15th St., NW
Washington, DC 20071
Attention: General Counsel
Bank One, NA
153 West 51st Street
New York, NY 10019
Attention: Corporate Trust Services
If a notice or communication is mailed in the manner provided above, it is
duly given, whether or not the addressee receives it. All notices or
communications shall be in writing.
10. Counterparts. This Supplemental Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
11. Effect of Headings. The headings of this Supplemental Indenture
are inserted for convenience of reference and shall not be deemed to be a part
thereof.
12. Conflict with Trust Indenture Act. If any provision of this
Supplemental Indenture limits, qualifies or conflicts with any provision of
the Trust Indenture Act that is required under the Trust Indenture Act to be
part of and govern any provision of this Supplemental Indenture, the provision
of the Trust Indenture Act shall control. If any provision of this
Supplemental Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the provision of the Trust
Indenture Act shall be deemed to apply to the Indenture as so modified or to
be excluded by this Supplemental Indenture, as the case may be.
13. Successors. All covenants and agreements in this Supplemental
Indenture by the Parent shall be binding upon and accrue to benefit of its
successors. All covenants and agreements in this Supplemental Indenture by the
Trustee shall be binding upon and accrue to the benefit of its successors.
14. Benefits of Supplemental Indenture. Nothing in this Supplemental
Indenture, the Indenture or the Securities, express or implied, shall give to
any Person, other than the parties hereto and thereto and their successors
hereunder and thereunder and the Holders, any benefit of any legal or
equitable right, remedy or claim under this Supplemental Indenture, the
Indenture or the Securities.
15. Trustee Not Responsible for Recitals. The recitals herein
contained are made by the Company and the Parent, and not by the Trustee, and
the Trustee assumes no responsibility for the correctness thereof. The Trustee
makes no representations as to the validity or sufficiency of this
Supplemental Indenture.
16. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW, SHALL GOVERN THIS SUPPLEMENTAL INDENTURE.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first above written.
WP COMPANY LLC (FORMERLY KNOWN AS
THE WASHINGTON POST COMPANY),
By: /s/ Gerald M. Rosberg
--------------------------------------
Name: Gerald M. Rosberg
Title: Vice President - Development
THE WASHINGTON POST COMPANY
(FORMERLY KNOWN AS TWPC, INC.),
By: /s/ John B. Morse, Jr.
--------------------------------------
Name: John B. Morse, Jr.
Title: Vice President - Finance
BANK ONE, NA (SUCCESSOR TO THE FIRST
NATIONAL BANK OF CHICAGO),
as Trustee,
By: /s/ Melissa Wilman
-------------------------------------
Name: Melissa Wilman
Title: Vice President
Exhibit 4.2
CONFORMED COPY
U.S. $250,000,000
364-DAY CREDIT AGREEMENT
Dated as of August 13, 2003
Among
THE WASHINGTON POST COMPANY
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITIBANK, N.A.
as Administrative Agent
and
WACHOVIA BANK, NATIONAL ASSOCIATION
SUNTRUST BANK
as Syndication Agents
and
JPMORGAN CHASE BANK
BANK ONE, NA
as Documentation Agents
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CITIGROUP GLOBAL MARKETS INC.
Lead Arranger and Book Manager
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms............................................1
SECTION 1.02. Computation of Time Periods.....................................14
SECTION 1.03. Accounting Terms................................................14
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances...................................15
SECTION 2.02. Making the Revolving Credit Advances............................15
SECTION 2.03. The Competitive Bid Advances....................................16
SECTION 2.04. Fees............................................................20
SECTION 2.05. Termination, Reduction or Increase of the Commitments...........20
SECTION 2.06. Repayment of Revolving Credit Advances; Term Loan Election......22
SECTION 2.07. Interest on Revolving Credit Advances...........................23
SECTION 2.08. Interest Rate Determination.....................................24
SECTION 2.09. Optional Conversion of Revolving Credit Advances................25
SECTION 2.10. Optional Prepayments of Revolving Credit Advances...............25
SECTION 2.11. Increased Costs.................................................25
SECTION 2.12. Illegality......................................................27
SECTION 2.13. Payments and Computations.......................................27
SECTION 2.14. Taxes...........................................................28
SECTION 2.15. Sharing of Payments, Etc........................................30
SECTION 2.16. Use of Proceeds.................................................31
SECTION 2.17. Extension of Termination Date...................................31
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and
2.03.....................................................33
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing,
Increase Date and Extension Date.........................34
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing..........34
SECTION 3.04. Determinations Under Section 3.01...............................35
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower..................35
ARTICLE V COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants...........................................37
SECTION 5.02. Negative Covenants..............................................40
SECTION 5.03. Financial Covenant..............................................41
ARTICLE VI EVENTS OF DEFAULT
SECTION 6.01. Events of Default...............................................41
ARTICLE VII THE AGENT
SECTION 7.01. Authorization and Action........................................43
SECTION 7.02. Agent's Reliance, Etc...........................................43
SECTION 7.03. Citibank and Affiliates.........................................44
SECTION 7.04. Lender Credit Decision..........................................44
SECTION 7.05. Indemnification.................................................44
SECTION 7.06. Successor Agent.................................................45
SECTION 7.07. Documentation Agents and Syndication Agents.....................45
ARTICLE VIII MISCELLANEOUS
SECTION 8.01. Amendments, Etc.................................................45
SECTION 8.02. Notices, Etc....................................................46
SECTION 8.03. No Waiver; Remedies.............................................46
SECTION 8.04. Costs and Expenses..............................................46
SECTION 8.05. Right of Set-off................................................47
SECTION 8.06. Binding Effect..................................................48
SECTION 8.07. Assignments and Participations..................................48
SECTION 8.08. Confidentiality.................................................51
SECTION 8.09. Governing Law...................................................51
SECTION 8.10. Execution in Counterparts.......................................51
SECTION 8.11. Jurisdiction, Etc...............................................51
SECTION 8.12. Waiver of Jury Trial............................................52
SECTION 8.13. Amendments to the Subsidiary Guaranty...........................52
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 5.02(a) - Existing Liens
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Assumption Agreement
Exhibit E-1 - Form of Opinion of Counsel for the Borrower
Exhibit E-2 - Form of Opinion of Counsel for the New Borrower
Exhibit E-3 - Form of Opinion of Counsel for the Newspaper Subsidiary
Exhibit F - Form of Subsidiary Guaranty
Exhibit G - Form of New Borrower Assignment
364-DAY CREDIT AGREEMENT
Dated as of August 13, 2003
The Washington Post Company, a Delaware corporation (the
"Borrower"), the banks, financial institutions and other institutional lenders
(the "Initial Lenders") listed on the signature pages hereof, and Citibank,
N.A. ("Citibank"), as administrative agent (the "Agent") for the Lenders (as
hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" means a Revolving Credit Advance or a Competitive Bid
Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with such
Person or is a director or executive officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 10% or more of the Voting
Stock of such Person or to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Stock, by
contract or otherwise.
"Agent's Account" means the account of the Agent maintained by the
Agent at Citibank with its office at 388 Greenwich Street, New York, New York
10013, Account No. 36852248, Attention: Bank Loans Syndications.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance
and, in the case of a Competitive Bid Advance, the office of such Lender
notified by such Lender to the Agent as its Applicable Lending Office with
respect to such Competitive Bid Advance.
"Applicable Margin" means as of any date, (a) for Base Rate
Advances, 0% per annum and (b) for Eurodollar Rate Advances, a percentage per
annum determined by reference to the Performance Level in effect on such date
as set forth below:
Applicable Margin for Applicable Margin for
Eurodollar Rate Advances Eurodollar Rate Advances On
Prior to Term Loan and After Term Loan Conversion
Performance Level Conversion Date Date
I 0.200% 0.425%
II 0.240% 0.475%
III 0.280% 0.525%
IV 0.320% 0.575%
V 0.500% 0.875%
"Applicable Percentage" means, as of any date, a percentage per
annum determined by reference to the Performance Level in effect on such date
as set forth below:
Performance Level Applicable Percentage
I 0.050%
II 0.060%
III 0.070%
IV 0.080%
V 0.125%
"Applicable Utilization Fee" means, as of any date prior to the Term
Loan Conversion Date on which the aggregate Advances exceed 50% of the
Commitments, a percentage per annum determined by reference to the Performance
Level in effect on such date as set forth below:
Performance Level Applicable Utilization Fee
I 0.050%
II 0.050%
III 0.050%
IV 0.050%
V 0.125%
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, accepted and approved by
the Agent and approved by the Borrower, in substantially the form of Exhibit C
hereto.
"Assuming Lender" means an Eligible Assignee not previously a Lender
that becomes a Lender hereunder pursuant to either Section 2.05(b) or Section
2.17.
"Assumption Agreement" means an agreement in substantially the form
of Exhibit D hereto by which an Eligible Assignee agrees to become a Lender
hereunder pursuant to either Section 2.05(b) or Section 2.17, in each case
agreeing to be bound by all obligations of a Lender hereunder.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.07(a)(i).
"Borrower" has the meaning specified in the recital or parties to
this Agreement, provided that upon the completion of the Restructuring and the
satisfaction of the conditions set forth in Section 5.01(j), the Borrower
shall be the New Borrower.
"Borrowing" means a Revolving Credit Borrowing or a Competitive Bid
Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
"Commitment" means, with respect to any Lender at any time (i) the
amount set forth opposite such Lender's name on the signature pages hereof,
(ii) if such Lender has become a Lender hereunder pursuant to an Assumption
Agreement, the amount set forth as its Commitment in such Assumption Agreement
or (iii) if such Lender has entered into one or more Assignments and
Acceptances, the amount set forth for such Lender in the Register maintained
by the Agent pursuant to Section 8.07(d), as such amount may be increased,
terminated or reduced, as the case may be, at or prior to such time pursuant
to Section 2.05.
"Commitment Date" has the meaning specified in Section 2.05(b)(i).
"Commitment Increase" has the meaning specified in Section
2.05(b)(i).
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the competitive
bidding procedure described in Section 2.03 and refers to a Fixed Rate Advance
or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose offer to
make one or more Competitive Bid Advances as part of such borrowing has been
accepted under the competitive bidding procedure described in Section 2.03.
"Competitive Bid Note" means a promissory note of the Borrower
(bearing an original or facsimile signature) payable to the order of any
Lender, in substantially the form of Exhibit A-2 hereto, evidencing the
indebtedness of the Borrower to such Lender resulting from a Competitive Bid
Advance made by such Lender.
"Confidential Information" means information that the Borrower
furnishes to the Agent or any Lender in a writing designated as confidential,
but does not include any such information that is or becomes generally
available to the public or that is or becomes available to the Agent or such
Lender from a source other than the Borrower that is not, to the best of the
Agent's or such Lender's knowledge, acting in violation of a confidentiality
agreement with or for the benefit of the Borrower.
"Consenting Lender" has the meaning specified in Section 2.17(b).
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Continuing Directors" means individuals who at the date hereof are
directors of the Borrower and any other director (a) whose election or
nomination was approved by a majority of the then Continuing Directors or (b)
who was nominated by management at a time when Continuing Directors
constituted a majority of the board of directors of the Borrower.
"Convert", "Conversion" and "Converted" each refers to a conversion
of Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
trade payables not overdue by more than 120 days incurred in the ordinary
course of such Person's business), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments, (d) all
obligations of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (e) all obligations of such Person as lessee under leases that have
been or should be, in accordance with GAAP, recorded as capital leases, (f)
all obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (g) all Debt
of others referred to in clauses (a) through (f) above or clause (h) below
guaranteed directly or indirectly in
any manner by such Person, or in effect guaranteed directly or indirectly by
such Person through an agreement (1) to pay or purchase such Debt or to
advance or supply funds for the payment or purchase of such Debt, (2) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make payment of
such Debt or to assure the holder of such Debt against loss, (3) to supply
funds to or in any other manner invest in the debtor (including any agreement
to pay for property or services irrespective of whether such property is
received or such services are rendered) or (4) otherwise to assure a creditor
against loss, and (h) all Debt referred to in clauses (a) through (g) above
secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including,
without limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Debt.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
"Domestic Lending Office" means, with respect to any Initial Lender,
the office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto and, with respect to any other Lender, the
office of such Lender specified as its "Domestic Lending Office" in the
Assumption Agreement or in the Assignment and Acceptance pursuant to which it
became a Lender, or such other office of such Lender as such Lender may from
time to time specify to the Borrower and the Agent.
"Downgrade" means, with respect to any Lender, the lowest rating
that has been most recently announced for any class of non-credit enhanced
long-term senior unsecured debt issued by such Lender is lower than BBB- by
S&P or Baa3 by Moody's.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) a commercial bank organized under the laws of the United States,
or any State thereof, and having total assets in excess of $5,000,000,000; (d)
a savings and loan association or savings bank organized under the laws of the
United States, or any State thereof, and having total assets in excess of
$5,000,000,000; (e) a commercial bank organized under the laws of any other
country that is a member of the Organization for Economic Cooperation and
Development or has concluded special lending arrangements with the
International Monetary Fund associated with its General Arrangements to Borrow
or of the Cayman Islands, or a political subdivision of any such country, and
having total assets in excess of $5,000,000,000 so long as such bank is acting
through a branch or agency located in the United States or in the country in
which it is organized or another country that is described in this clause (e);
(f) the central bank of any country that is a member of the Organization for
Economic Cooperation and Development; and (g) any other Person approved by the
Agent and the Borrower, such approval not to be unreasonably withheld or
delayed; provided, however, that neither the Borrower nor an Affiliate of the
Borrower shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of liability or
potential liability, consent order or consent agreement relating in any way to
any Environmental Law, Environmental Permit or Hazardous Materials or arising
from alleged injury or threat of injury to health, safety or the environment,
including, without limitation, (a) by any governmental or regulatory authority
for enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or any third party
for damages, contribution, indemnification, cost recovery, compensation or
injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment or decree
relating to pollution or protection of the environment, health, safety or
natural resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or discharge
of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or under common control
with the Borrower, within the meaning of Section 414(b) or (c) of the Internal
Revenue Code or, solely for purposes of Sections 302 and 303 of ERISA and
Section 412 of the Internal Revenue Code, is treated as a single employer
under Section 414(b), (c), (m) and (o) of the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan unless
the 30-day notice requirement with respect to such event has been waived by
the PBGC, or (ii) the requirements of subsection (1) of Section 4043(b) of
ERISA (without regard to subsection (2) of such Section) are met with a
contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan,
and an event described in paragraph (9), (10), (11), (12) or (13) of Section
4043(c) of ERISA is reasonably expected to occur with respect to such Plan
within the following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any Plan of
a notice of intent to terminate such Plan pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan amendment referred to
in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of
the Borrower or any ERISA Affiliate in the circumstances described in Section
4062(e) of ERISA; (e) the withdrawal by the Borrower or any ERISA Affiliate
from a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for the imposition of a lien under Section 302(f) of ERISA shall
have been met with respect to any Plan; (g) the adoption of an amendment to a
Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA; or (h)
the institution by the PBGC of proceedings to terminate a Plan pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition described
in Section 4042 of ERISA that constitutes grounds for the termination of, or
the appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurocurrency Reserve Requirements" means the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Board of
Governors of the Federal Reserve System and any other banking authority to
which any Lender is subject and applicable to Eurocurrency Liabilities, or any
similar category of assets or liabilities relating to eurocurrency fundings.
Eurocurrency Reserve Requirements shall be adjusted automatically on and as of
the effective date of any change in any reserve percentage.
"Eurodollar Lending Office" means, with respect to any Initial
Lender, the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto and, with respect to any other Lender,
the office of such Lender specified as its "Eurodollar Lending Office" in the
Assumption Agreement or in the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Revolving Credit Borrowing, an
interest rate per annum equal to the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in U.S. dollars are offered
to the principal office of each of the Reference Banks in London, England by
prime banks in the London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurodollar Rate Advance
comprising part of such Revolving Credit Borrowing to be outstanding during
such Interest Period and for a period equal to such Interest Period. The
Eurodollar Rate for any Interest Period for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing shall be determined by
the Agent on the basis of applicable rates furnished to and received by the
Agent from the Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.07(a)(ii).
"Events of Default" has the meaning specified in Section 6.01.
"Extension Date" has the meaning specified in Section 2.17(b).
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average of the quotations
for such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by it with the consent of the
Borrower.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
"Graham Interests" shall mean Donald E. Graham and his siblings,
their descendants and any relative by marriage of the foregoing, and any trust
for the benefit of any of the foregoing whether as an income or residual
beneficiary.
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other
chemicals, materials or substances designated, classified or regulated as
hazardous or toxic under any Environmental Law and any pollutant or
contaminant regulated under the Clean Water Act, 33 U.S.C. Sections 1251 et
seq., or the Clean Air Act, 42 U.S.C. Sections 7401 et seq.
"Increase Date" has the meaning specified in Section 2.05(b)(i).
"Increasing Lender" has the meaning specified in Section 2.05(b)(i).
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Revolving Credit Borrowing and each LIBO Rate Advance
comprising part of the same Competitive Bid Borrowing, the period commencing
on the date of such Eurodollar Rate Advance or LIBO Rate Advance or the date
of the Conversion of any Base Rate Advance into such Eurodollar Rate Advance
and ending on the last day of the period selected by the Borrower pursuant to
the provisions below and, thereafter, with respect to Eurodollar Rate
Advances, each subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period selected by
the Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months or, if available to all
the Lenders, nine or twelve months, as the Borrower may, upon notice received
by the Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period, select; provided,
however, that:
(i) the Borrower may not select any Interest Period that ends
after the Termination Date in effect at the time of such selection
or, if the Revolving Credit Advances have been converted to a term
loan pursuant to Section 2.06 prior to such selection, that ends
after the Maturity Date;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of the
same Competitive Bid Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such extension
would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Lenders" means the Initial Lenders, each Assuming Lender that shall
become a party hereto pursuant to either Section 2.05(b) or Section 2.17 and
each Person that shall become a party hereto pursuant to Section 8.07.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an interest
rate per annum equal to the average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not such a multiple) of
the rate per annum at which deposits in U.S. dollars are offered to the
principal office of each of the Reference Banks in London, England by prime
banks in the London interbank market at 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period in an amount substantially
equal to the amount that would be the Reference Banks' respective ratable
shares of such Borrowing if such Borrowing were to be a Revolving Credit
Borrowing to be outstanding during such Interest Period and for a period equal
to such Interest Period. The LIBO Rate for any Interest Period for each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks two Business Days before the
first day of such Interest Period, subject, however, to the provisions of
Section 2.08.
"LIBO Rate Advances" has the meaning specified in Section
2.03(a)(i).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"Loan Document" means this Agreement, the Notes and, after the
Restructuring, the Subsidiary Guaranty and the New Borrower Assignment.
"Loan Party" means the Borrower and, so long as the Subsidiary
Guaranty is in effect, the Subsidiary Guarantor.
"Margin Stock" has the meaning assigned to such term under
Regulation U of the Board of Governors of the Federal Reserve System of the
United States as from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Material Adverse Change" means any material adverse change in the
business, financial condition or results of operations of the Borrower and its
Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, financial condition or results of operations of the Borrower and its
Subsidiaries taken as a whole, (b) the rights and remedies of the Agent or any
Lender under this Agreement or any Note or (c) the ability of the Borrower to
perform its obligations under this Agreement or any Note.
"Maturity Date" means the earlier of (a) the first anniversary of
the Termination Date and (b) the date of termination in whole of the aggregate
Commitments pursuant to Section 2.05 or 6.01.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any of
the preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and at least one Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in respect of
which the Borrower or any ERISA Affiliate could have liability under Section
4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"New Borrower" means, upon the completion of the Restructuring, the
new parent holding company that is the corporate parent of the Newspaper
Subsidiary.
"New Borrower Assignment" has the meaning specified in Section
5.01(j).
"Newspaper Subsidiary" has the meaning specified in the definition
of "Restructuring".
"Non-Consenting Lender" has the meaning specified in Section
2.17(b).
"Non-Recourse Debt" shall mean Debt of the Borrower or its
Subsidiaries incurred (a) as to which neither the Borrower nor any of its
Subsidiaries (i) provides credit support (including any undertaking, agreement
or instrument which would constitute Debt) or has given or made other written
assurances regarding repayment or the maintenance of capital or liquidity
except such assurances as may be approved by the Required Lenders (such
approval not to be unreasonably withheld or delayed), (ii) is directly or
indirectly liable or (iii) constitutes the lender and (b) the obligees of
which will have recourse solely to certain identified assets (the loss of
which would not reasonably be expected to have a Material Adverse Effect) for
repayment of the principal of and interest on such Debt and any fees,
indemnities, expenses, reimbursements or other amounts of whatever nature
accrued or payable in connection with such Debt.
"Note" means a Revolving Credit Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning specified in
Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning specified in
Section 2.02(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Performance Level" means, as of any date of the determination, the
level set forth below as then in effect, as determined in accordance with the
following provisions of this definition:
Level I: Public Debt Rating of not lower than
AA- by S&P or not lower than Aa3 by
Moody's.
Level II: Public Debt Rating of lower than Level
I but not lower than A+ by S&P or A1 by
Moody's.
Level III: Public Debt Rating of lower than
Level II but not lower than A by S&P or A2
by Moody's.
Level IV: Public Debt Rating of lower than Level
III but not lower than A- by S&P and A3 by
Moody's.
Level V: Public Debt Rating of lower than Level IV.
For purposes of the foregoing, (a) if only one of S&P and Moody's
shall have in effect a Public Debt Rating, the Performance Level shall be
determined by reference to the available rating and (b) if the Public Debt
Ratings established by S&P and Moody's shall fall within different Performance
Levels, the Performance Level shall be based upon the higher rating, provided
that if the lower of such ratings is more than one level below the higher of
such ratings, the Performance Level shall be based on the level immediately
above such lower rating.
"Permitted Liens" means any of the following:
(a) Liens for taxes, assessments and governmental charges or levies
to the extent not required to be paid under Section 5.01(b) hereof;
(b) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens and other similar Liens arising in
the ordinary course of business securing obligations (other than Debt) that
(i) are not overdue for a period of more than 120 days or (ii) are being
contested in good faith and by proper proceedings and as to which appropriate
reserves are being maintained in accordance with GAAP;
(c) Pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or statutory
obligations;
(d) Liens securing the performance of or payment in respect of,
bids, tenders, government contracts (other than for the repayment of Debt),
surety and appeal bonds and other obligations of a similar nature incurred in
the ordinary course of business; and
(e) Easements, rights of way and other encumbrances on title to real
property that do not materially adversely affect the use of such property for
its present purposes.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan
subject to the provisions of Title IV of ERISA or Section 412 of the Internal
Revenue Code or Section 302 of ERISA.
"Pro Rata Share" of any amount means, with respect to any Lender at
any time, the product of such amount times a fraction the numerator of which
is the amount of such Lender's Commitment at such time and the denominator of
which is the aggregate of the Commitments of the Lenders at such time.
"Public Debt Rating" means, as of any date, the lowest rating that
has been most recently announced by either S&P or Moody's, as the case may be,
for any class of non-credit enhanced long-term senior unsecured debt issued by
the Borrower. For purposes of the foregoing, (a) if any rating established by
S&P or Moody's shall be changed, such change shall be effective as of the date
on which such change is first announced publicly by the rating agency making
such change; and (b) if S&P or Moody's shall change the basis on which ratings
are established, each reference to the Public Debt Rating announced by S&P or
Moody's, as the case may be, shall refer to the then equivalent rating by S&P
or Moody's, as the case may be.
"Reference Banks" means Citibank, SunTrust Bank and JPMorgan Chase
Bank.
"Register" has the meaning specified in Section 8.07(d).
"Required Lenders" means at any time Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount of the
Revolving Credit Advances owing to Lenders or, if no such principal amount is
then outstanding, Lenders having at least a majority in interest of the
Commitments.
"Restructuring" means an internal restructuring of the Borrower
pursuant to which the Borrower merges with a wholly owned Subsidiary of the
New Borrower and transfers its assets and liabilities, other than the
newspaper publishing business, to the New Borrower. Thereafter the Borrower
shall be a wholly owned subsidiary of the New Borrower and shall be referred
to as the "Newspaper Subsidiary".
"Revolving Credit Advance" means an advance by a Lender to the
Borrower as part of a Revolving Credit Borrowing and refers to a Base Rate
Advance or a Eurodollar Rate Advance (each of which shall be a "Type" of
Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of the
Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of the Borrower
(bearing an original or facsimile signature) payable to the order of any
Lender, in substantially the form of Exhibit A-1 hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from the
Revolving Credit Advances made by such Lender.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies, Inc.
"Shareholders' Equity" means "shareholders' equity" as such term is
construed in accordance with GAAP and as reported in the Borrower's reports
and registration statements filed with the Securities and Exchange Commission
or any national securities exchange.
"Significant Subsidiary" shall mean any Subsidiary that would be a
"significant subsidiary" within the meaning of Rule 1-02 of the SEC's
Regulation S-X and shall include, so long as the Subsidiary Guaranty is in
effect, the Newspaper Subsidiary.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and no Person other than the Borrower and the
ERISA Affiliates or (b) was so maintained and in respect of which the Borrower
or any ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having ordinary
voting power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or
classes of such corporation shall or might have voting power
upon the occurrence of any contingency), (b) the interest in the capital or
profits of such limited liability company, partnership or joint venture or (c)
the beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more
of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Subsidiary Guaranty" has the meaning specified in Section 5.01(j).
"Term Loan Conversion Date" means the Termination Date on which all
Revolving Credit Advances outstanding on such date are converted into a term
loan pursuant to Section 2.06.
"Term Loan Election" has the meaning specified in Section 2.06.
"Termination Date" means the earlier of (a) August 11, 2004, subject
to the extension thereof pursuant to Section 2.17 and (b) the date of
termination in whole of the Commitments pursuant to Section 2.05 or 6.01;
provided, however, that the Termination Date of any Lender that is a
Non-Consenting Lender to any requested extension pursuant to Section 2.17
shall be the Termination Date in effect immediately prior to the applicable
Extension Date for all purposes of this Agreement.
"Unused Commitment" means, with respect to any Lender at any time,
(a) such Lender's Commitment at such time minus (b) the sum of (i) the
aggregate principal amount of all Revolving Credit Advances made by such
Lender and outstanding at such time, plus (ii) such Lender's Pro Rata Share of
the aggregate principal amount of the Competitive Bid Advances then
outstanding.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of not less
than a majority of the directors (or persons performing similar functions) of
such Person, even if the right so to vote has been suspended by the happening
of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding".
SECTION 1.03. Accounting Terms. All terms of an accounting or
financial nature shall be construed in accordance with generally accepted
accounting principles ("GAAP"), as in effect from time to time; provided,
however, that if the Borrower notifies the Agent that the Borrower wishes to
amend any covenant in Article V or any related definition to eliminate the
effect of any change in GAAP occurring after the date of this Agreement on the
operation of such covenant, or if the Agent notifies the Borrower that the
Required Lenders wish to amend Article V or any related definition for such
purpose, then the Borrower's compliance with such covenant shall be determined
on the basis of GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Borrower and the Required Lenders.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to the Borrower from time to time on any Business Day during
the period from the Effective Date until the Termination Date in an amount for
each such Advance not to exceed such Lender's Unused Commitment. Each
Revolving Credit Borrowing shall be in an aggregate amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof (or, if less, an aggregate
amount equal to the amount by which the aggregate amount of a proposed
Competitive Bid Borrowing requested by the Borrower exceeds the aggregate
amount of Competitive Bid Advances offered to be made by the Lenders and
accepted by the Borrower in respect of such Competitive Bid Borrowing, if such
Competitive Bid Borrowing is made on the same date as such Revolving Credit
Borrowing) and shall consist of Revolving Credit Advances of the same Type
made on the same day by the Lenders ratably according to their respective
Commitments. Within the limits of each Lender's Unused Commitment in effect
from time to time, the Borrower may borrow under this Section 2.01, prepay
pursuant to Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Revolving Credit Borrowing shall be made on notice, given not later than 11:00
A.M. (New York City time) on the third Business Day prior to the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Eurodollar Rate Advances, or the date of the proposed
Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Base Rate Advances, by the Borrower to the Agent, which shall
give to each Lender prompt notice thereof by telecopier or telex. Each such
notice of a Revolving Credit Borrowing (a "Notice of Revolving Credit
Borrowing") shall be by telephone, confirmed at once in writing, or telecopier
or telex in substantially the form of Exhibit B-1 hereto, specifying therein
the requested (i) date of such Revolving Credit Borrowing, (ii) Type of
Advances comprising such Revolving Credit Borrowing, (iii) aggregate amount of
such Revolving Credit Borrowing, and (iv) in the case of a Revolving Credit
Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for
each such Revolving Credit Advance. Each Lender shall, before 1:00 P.M. (New
York City time) on the date of such Revolving Credit Borrowing, make available
for the account of its Applicable Lending Office to the Agent at the Agent's
Account, in same day funds, such Lender's ratable portion of such Revolving
Credit Borrowing. After the Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article III, the Agent will make
such funds available to the Borrower at the Agent's address referred to in
Section 8.02.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Revolving Credit Borrowing if the aggregate amount of such Revolving
Credit Borrowing is less than $10,000,000 or if the obligation of the Lenders
to make Eurodollar Rate Advances shall then be suspended pursuant to Section
2.08 or 2.12 and (ii) the Eurodollar Rate Advances may not be outstanding as
part of more than fifteen separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be irrevocable
and binding on the Borrower. In the case of any Revolving Credit Borrowing
that the related Notice of Revolving Credit Borrowing specifies is to be
comprised of Eurodollar Rate Advances, the Borrower shall indemnify each
Lender against any loss, cost or expense incurred by such Lender as a result
of any failure to fulfill on or before the date specified in such Notice of
Revolving Credit Borrowing for such Revolving Credit Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Revolving Credit Advance to be made by such Lender as part
of such Revolving Credit Borrowing when such Revolving Credit Advance, as a
result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender prior
to the date of any Revolving Credit Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such Revolving Credit
Borrowing, the Agent may assume that such Lender has made such portion
available to the Agent on the date of such Revolving Credit Borrowing in
accordance with subsection (a) 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 Lender shall not have so
made such ratable portion available to the Agent, such Lender 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, the interest rate applicable at the
time to the Advances comprising such Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
Revolving Credit Advance as part of such Revolving Credit Borrowing for
purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance
to be made by it as part of any Borrowing shall not relieve any other Lender
of its obligation, if any, hereunder to make its Revolving Credit Advance on
the date of such Revolving Credit Borrowing but no Lender shall be responsible
for the failure of any other Lender to make the Revolving Credit Advance to be
made by such other Lender on the date of any Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that the Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below; provided that the amount of each Competitive
Bid Borrowing shall not exceed the aggregate amount of the Unused Commitments
of the Lenders on such Business Day.
(i) The Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Agent, by telecopier or
telex, a notice of a Competitive Bid Borrowing (a "Notice of
Competitive Bid Borrowing"), in substantially the form of Exhibit
B-2 hereto, specifying therein the requested (u) date of such
proposed Competitive Bid Borrowing, (v) aggregate amount of such
proposed Competitive Bid
Borrowing, (w) maturity date for repayment of each Advance to be
made as part of such Competitive Bid Borrowing (which maturity date
may not be earlier than the date occurring 30 days after the date of
such Competitive Bid Borrowing or later than the earlier of (I) 360
days after the date of such Competitive Bid Borrowing and (II) the
Termination Date), (x) in the case of a Competitive Bid Advance
consisting of LIBO Rate Advances, the Interest Period thereof, (y)
interest payment date or dates relating thereto, and (z) other terms
(if any) to be applicable to such Competitive Bid Borrowing, not
later than 10:00 A.M. (New York City time) (A) at least one Business
Day prior to the date of the proposed Competitive Bid Borrowing, if
the Borrower shall specify in the Notice of Competitive Bid
Borrowing that the rates of interest to be offered by the Lenders
shall be fixed rates per annum (the Advances comprising any such
Competitive Bid Borrowing being referred to herein as "Fixed Rate
Advances") and (B) at least four Business Days prior to the date of
the proposed Competitive Bid Borrowing, if the Borrower shall
instead specify in the Notice of Competitive Bid Borrowing that the
rates of interest be offered by the Lenders are to be based on the
LIBO Rate (the Advances comprising such Competitive Bid Borrowing
being referred to herein as "LIBO Rate Advances"). Each Notice of
Competitive Bid Borrowing shall be irrevocable and binding on the
Borrower. The Agent shall in turn promptly notify each Lender of
each request for a Competitive Bid Borrowing received by it from the
Borrower by sending such Lender a copy of the related Notice of
Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid
Advances to the Borrower as part of such proposed Competitive Bid
Borrowing at a rate or rates of interest specified by such Lender in
its sole discretion, by notifying the Agent (which shall give prompt
notice thereof to the Borrower), before 9:30 A.M. (New York City
time) on the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances and before 10:00 A.M. (New York City time) three Business
Days before the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of LIBO Rate
Advances, of the minimum amount and maximum amount of each
Competitive Bid Advance which such Lender would be willing to make
as part of such proposed Competitive Bid Borrowing (which amounts
may, subject to the proviso to the first sentence of this Section
2.03(a), exceed such Lender's Commitment), the rate or rates of
interest therefor and such Lender's Applicable Lending Office with
respect to such Competitive Bid Advance; provided that if the Agent
in its capacity as a Lender shall, in its sole discretion,
elect to make any such offer, it shall notify the Borrower of such
offer at least 30 minutes before the time and on the date on which
notice of such election is to be given to the Agent by the other
Lenders. If any Lender shall elect not to make such an offer, such
Lender shall so notify the Agent, before 10:00 A.M. (New York City
time) on the date on which notice of such election is to be given to
the Agent by the other Lenders, and such Lender shall not be
obligated to, and shall not, make any Competitive Bid Advance as
part of such Competitive Bid Borrowing; provided that the failure by
any Lender to give such notice shall not cause such Lender
to be obligated to make any Competitive Bid Advance as part of such
proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before 10:30 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances and before 11:00 A.M. (New York City time) three Business
Days before the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of LIBO Rate
Advances, either:
(x) cancel such Competitive Bid Borrowing by giving the
Agent notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole
discretion, by giving notice to the Agent of the amount of each
Competitive Bid Advance (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the
maximum amount, notified to the Borrower by the Agent on behalf
of such Lender for such Competitive Bid Advance pursuant to
paragraph (ii) above) to be made by each Lender as part of such
Competitive Bid Borrowing, and reject any remaining offers made
by Lenders pursuant to paragraph (ii) above by giving the Agent
notice to that effect. The Borrower shall accept the offers
made by any Lender or Lenders to make Competitive Bid Advances
in order of the lowest to the highest rates of interest offered
by such Lenders. If two or more Lenders have offered the same
interest rate, the amount to be borrowed at such interest rate
will be allocated among such Lenders in proportion to the
amount that each such Lender offered at such interest rate.
(iv) If the Borrower notifies the Agent that such Competitive
Bid Borrowing is cancelled pursuant to paragraph (iii)(x) above, the
Agent shall give prompt notice thereof to the Lenders and such
Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y) above, the
Agent shall in turn promptly notify (A) each Lender that has made an
offer as described in paragraph (ii) above, of the date and
aggregate amount of such Competitive Bid Borrowing and whether or
not any offer or offers made by such Lender pursuant to paragraph
(ii) above have been accepted by the Borrower, (B) each Lender that
is to make a Competitive Bid Advance as part of such Competitive Bid
Borrowing, of the amount of each Competitive Bid Advance to be made
by such Lender as part of such Competitive Bid Borrowing, and (C)
each Lender that is to make a Competitive Bid Advance as part of
such Competitive Bid Borrowing, upon receipt, that the Agent has
received forms of documents appearing to fulfill the applicable
conditions set forth in Article III. Each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing
shall, before 12:00 noon (New York City time) on the date of such
Competitive Bid Borrowing specified in the notice received from the
Agent pursuant to clause (A) of the preceding sentence or any later
time when such Lender shall have received notice from the Agent
pursuant to clause (C) of the preceding sentence, make available for
the account of its Applicable Lending Office to the Agent at the
Agent's Account, in same day funds, such Lender's portion of such
Competitive Bid Borrowing. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the Agent
of such funds, the Agent will make such
funds available to the Borrower at the Agent's address referred to
in Section 8.02. Promptly after each Competitive Bid Borrowing the
Agent will notify each Lender of the amount of the Competitive Bid
Borrowing.
(vi) If the Borrower notifies the Agent that it accepts one or
more of the offers made by any Lender or Lenders pursuant to
paragraph (iii)(y) above, such notice of acceptance shall be
irrevocable and binding on the Borrower. The Borrower shall
indemnify each Lender against any loss, cost or expense incurred by
such Lender as a result of any failure to fulfill on or before the
date specified in the related Notice of Competitive Bid Borrowing
for such Competitive Bid Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Competitive Bid Advance to be
made by such Lender as part of such Competitive Bid Borrowing when
such Competitive Bid Advance, as a result of such failure, is not
made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount
of $10,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each Competitive Bid Borrowing, the Borrower shall be
in compliance with the limitation set forth in the proviso to the first
sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this Section
2.03, repay or prepay pursuant to subsection (d) below, and reborrow under
this Section 2.03, provided that a Competitive Bid Borrowing shall not be made
within one Business Day of the date of any other Competitive Bid Borrowing.
(d) The Borrower shall repay to the Agent for the account of each
Lender that has made a Competitive Bid Advance, on the maturity date of each
Competitive Bid Advance (such maturity date being that specified by the
Borrower for repayment of such Competitive Bid Advance in the related Notice
of Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and
provided in the Competitive Bid Note evidencing such Competitive Bid Advance),
the then unpaid principal amount of such Competitive Bid Advance. The Borrower
shall have no right to prepay any principal amount of any Competitive Bid
Advance unless, and then only on the terms, specified by the Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above and set forth in the Competitive
Bid Note evidencing such Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid principal amount
of each Competitive Bid Advance from the date of such Competitive Bid Advance
to the date the principal amount of such Competitive Bid Advance is repaid in
full, at the rate of interest for such Competitive Bid Advance specified by
the Lender making such Competitive Bid Advance in its notice with respect
thereto delivered pursuant to subsection (a)(ii) above, payable on the
interest payment date or dates specified by the Borrower for such Competitive
Bid Advance in the related Notice of Competitive Bid Borrowing delivered
pursuant to subsection (a)(i) above, as provided in the Competitive Bid Note
evidencing such Competitive Bid Advance. The
Borrower shall pay interest on the amount of overdue principal and, to the
fullest extent permitted by law, interest in respect of each Competitive Bid
Advance owing to a Lender, payable in arrears on the date or dates interest is
payable thereon, at a rate per annum equal at all times to 1% per annum above
the rate per annum required to be paid on such Competitive Bid Advance under
the terms of the Competitive Bid Note evidencing such Competitive Bid Advance
unless otherwise agreed in such Competitive Bid Note.
(f) The indebtedness of the Borrower resulting from each Competitive
Bid Advance made to the Borrower as part of a Competitive Bid Borrowing shall
be evidenced by a separate Competitive Bid Note of the Borrower payable to the
order of the Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay to
the Agent for the account of each Lender a facility fee on the aggregate
amount of such Lender's Commitment in effect from time to time from the
Effective Date in the case of each Initial Lender and from the later of the
Effective Date and the effective date specified in the Assumption Agreement or
in the Assignment and Acceptance, as the case may be, pursuant to which it
became a Lender in the case of each other Lender until the Termination Date at
a rate per annum equal to the Applicable Percentage in effect from time to
time, payable in arrears quarterly on the last day of each March, June,
September and December, commencing September 30, 2003, and on the Termination
Date.
(b) Agent's Fees. The Borrower shall pay to the Agent for its own
account such fees as may from time to time be agreed between the Borrower and
the Agent.
SECTION 2.05. Termination, Reduction or Increase of the Commitments.
(a) Termination or Reduction. (i) Optional. The Borrower shall have the right,
upon at least three Business Days' notice to the Agent, to terminate in whole
or reduce ratably in part the respective Unused Commitments of the Lenders,
provided that each partial reduction shall be in the aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof. The
aggregate amount of the Commitments once reduced as provided in this Section
2.05(a)(i), may not be reinstated, except as provided in Section 2.05(b)
below.
(ii) Mandatory. On the Termination Date, if the Borrower has made
the Term Loan Election in accordance with Section 2.06 prior to such
date, and from time to time thereafter upon each prepayment of the
Revolving Credit Advances, the Commitments of the Lenders shall be
automatically and permanently reduced on a pro rata basis by an amount
equal to the amount by which (A) the aggregate Commitments immediately
prior to such reduction exceed (B) the aggregate unpaid principal amount
of all Revolving Credit Advances outstanding at such time.
(b) Increase in Aggregate of the Commitments. (i) The Borrower may
at any time, by notice to the Agent, propose that the aggregate amount of the
Commitments be increased (such aggregate amount being, a "Commitment
Increase"), effective as at a date prior to the Termination Date (an "Increase
Date") as to which agreement is to be reached by an earlier date specified in
such notice (a "Commitment Date"); provided, however, that (A) the Borrower
may not propose more than two Commitment Increases in any calendar year, (B)
the minimum
proposed Commitment Increase per notice shall be $25,000,000, (C) in no event
shall the aggregate amount of the Commitments at any time exceed $350,000,000,
(D) the applicable Performance Level on such Increase Date shall be Level I,
Level II or Level III and (E) no Default shall have occurred and be continuing
on such Increase Date. The Agent shall notify the Lenders thereof promptly
upon its receipt of any such notice. The Agent agrees that it will cooperate
with the Borrower in discussions with the Lenders and other Eligible Assignees
with a view to arranging the proposed Commitment Increase through the increase
of the Commitments of one or more of the Lenders (each such Lender that is
willing to increase its Commitment hereunder being an "Increasing Lender") and
the addition of one or more other Eligible Assignees as Assuming Lenders and
as parties to this Agreement; provided, however, that it shall be in each
Lender's sole discretion whether to increase its Commitment hereunder in
connection with the proposed Commitment Increase; and provided further that
the minimum Commitment of each such Assuming Lender that becomes a party to
this Agreement pursuant to this Section 2.05(b), shall be at least equal to
$10,000,000. If any of the Lenders agree to increase their respective
Commitments by an aggregate amount in excess of the proposed Commitment
Increase, the proposed Commitment Increase shall be allocated among such
Lenders in proportion to their respective Commitments immediately prior to the
Increase Date. If agreement is reached on or prior to the applicable
Commitment Date with any Increasing Lenders and Assuming Lenders as to a
Commitment Increase (which may be less than but not greater than specified in
the applicable notice from the Borrower), such agreement to be evidenced by a
notice in reasonable detail from the Borrower to the Agent on or prior to the
applicable Commitment Date, such Assuming Lenders, if any, shall become
Lenders hereunder as of the applicable Increase Date and the Commitments of
such Increasing Lenders and such Assuming Lenders shall become or be, as the
case may be, as of the Increase Date, the amounts specified in such notice;
provided that:
(x) the Agent shall have received (with copies for each Lender,
including each such Assuming Lender) by no later than 10:00 A.M. (New
York City time) on the applicable Increase Date (1) certified copies of
resolutions of the Board of Directors of the Borrower approving the
Commitment Increase and (2) an opinion of counsel for the Borrower (which
may be in-house counsel), in substantially the form of Exhibit E-1
hereto;
(y) each such Assuming Lender shall have delivered to the Agent, by
no later than 10:00 A.M. (New York City time) on such Increase Date, an
appropriate Assumption Agreement in substantially the form of Exhibit D
hereto, duly executed by such Assuming Lender and the Borrower; and
(z) each such Increasing Lender shall have delivered to the Agent
by, no later than 10:00 A.M. (New York City time) on such Increase Date,
(A) its existing Revolving Credit Note and (B) confirmation in writing
satisfactory to the Agent as to its increased Commitment.
(ii) In the event that the Agent shall have received notice from the
Borrower as to its agreement to a Commitment Increase on or prior to the
applicable Commitment Date and each of the actions provided for in
clauses (x) through (z) above shall have occurred prior to 10:00 A.M.
(New York City time) on the applicable Increase Date to
the satisfaction of the Agent, the Agent shall notify the Lenders (including
any Assuming Lenders) and the Borrower of the occurrence of such Commitment
Increase by telephone, confirmed at once in writing, telecopier, telex or
cable and in any event no later than 1:00 P.M. (New York City time) on such
Increase Date and shall record in the Register the relevant information with
respect to each Increasing Lender and Assuming Lender. Each Increasing Lender
and each Assuming Lender shall, before 2:00 P.M. (New York City time) on the
applicable Increase Date, make available for the account of its Applicable
Lending Office to the Agent at the Agent's Account, in same day funds, in the
case of such Assuming Lender, an amount equal to such Assuming Lender's
ratable portion of the Revolving Credit Borrowings then outstanding
(calculated based on its Commitment as a percentage of the aggregate
Commitments outstanding after giving effect to the relevant Commitment
Increase) and, in the case of such Increasing Lender, an amount equal to the
excess of (i) such Increasing Lender's ratable portion of the Revolving Credit
Borrowings then outstanding (calculated based on its Commitment as a
percentage of the aggregate Commitments outstanding after giving effect to the
relevant Commitment Increase) over (ii) such Increasing Lender's Pro Rata
Share of the Revolving Credit Borrowings then outstanding (calculated based on
its Commitment (without giving effect to the relevant Commitment Increase) as
a percentage of the aggregate Commitments (without giving effect to the
relevant Commitment Increase). After the Agent's receipt of such funds from
each such Increasing Lender and each such Assuming Lender, the Agent will
promptly thereafter cause to be distributed like funds to the other Lenders
for the account of their respective Applicable Lending Offices in an amount to
each other Lender such that the aggregate amount of the outstanding Revolving
Credit Advances owing to each Lender after giving effect to such distribution
equals such Lender's Pro Rata Share of the Revolving Credit Borrowings then
outstanding (calculated based on its Commitment as a percentage of the
aggregate Commitments outstanding after giving effect to the relevant
Commitment Increase). Within five Business Days after the Borrower receives
notice from the Agent, the Borrower, at its own expense, shall execute and
deliver to the Agent, Revolving Credit Notes payable to the order of each
Assuming Lender, if any, and, each Increasing Lender, dated as of the
applicable Increase Date, in a principal amount equal to such Lender's
Commitment after giving effect to the relevant Commitment Increase, and
substantially in the form of Exhibit A-1 hereto. The Agent, upon receipt of
such Revolving Credit Notes, shall promptly deliver such Revolving Credit
Notes to the respective Assuming Lenders and Increasing Lenders.
(iii) In the event that the Agent shall not have received notice
from the Borrower as to such agreement on or prior to the applicable
Commitment Date or the Borrower shall, by notice to the Agent prior to the
applicable Increase Date, withdraw its proposal for a Commitment Increase or
any of the actions provided for above in clauses (i)(x) through (i)(z) shall
not have occurred by 10:00 A.M. (New York City time) on the such Increase
Date, such proposal by the Borrower shall be deemed not to have been made. In
such event, any actions theretofore taken under clauses (i)(x) through (i)(z)
above shall be deemed to be of no effect and all the rights and obligations of
the parties shall continue as if no such proposal had been made.
SECTION 2.06. Repayment of Revolving Credit Advances; Term Loan
Election. The Borrower shall, subject to the next succeeding sentence, repay
to the Agent for the ratable
account of the Lenders on the Termination Date the aggregate principal amount
of the Revolving Credit Advances then outstanding. The Borrower may, upon not
less than 15 days' notice to the Agent, elect (the "Term Loan Election") to
convert a portion or all of the Revolving Credit Advances outstanding on the
Termination Date in effect at such time into a term loan which the Borrower
shall repay in full ratably to the Lenders on the Maturity Date; provided that
(i) the Term Loan Election may not be exercised if a Default has occurred and
is continuing on the date of notice of the Term Loan Election or on the date
on which the Term Loan Election is to be effected and (ii) the aggregate
principal amount of any portion of the outstanding Revolving Credit Advances
not converted pursuant to the Term Loan Election shall be repaid on the
Termination Date. All Revolving Credit Advances converted into a term loan
pursuant to this Section 2.06 shall continue to constitute Revolving Credit
Advances except that the Borrower may not reborrow pursuant to Section 2.01
after all or any portion of such Revolving Credit Advances have been prepaid
pursuant to Section 2.10.
SECTION 2.07. Interest on Revolving Credit Advances. (a) Scheduled
Interest. The Borrower shall pay interest on the unpaid principal amount of
each Revolving Credit Advance owing to each Lender from the date of such
Revolving Credit Advance until such principal amount shall be paid in full, at
the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving Credit
Advance is a Base Rate Advance a rate per annum equal at all times to the
sum of (x) the Base Rate in effect from time to time plus (y) the
Applicable Margin in effect from time to time plus (z) the Applicable
Utilization Fee, if any, in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Revolving
Credit Advance is a Eurodollar Rate Advance, a rate per annum equal at
all times during each Interest Period for such Revolving Credit Advance
to the sum of (x) the Eurodollar Rate for such Interest Period for such
Revolving Credit Advance plus (y) the Applicable Margin in effect from
time to time plus (z) the Applicable Utilization Fee, if any,
in effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more than
three months, on each day that occurs during such Interest Period every
three months from the first day of such Interest Period and on the date
such Eurodollar Rate Advance shall be Converted or paid in full.
(b) Default Interest. The Borrower shall pay interest on (i) overdue
principal of each Revolving Credit Advance owing to each Lender, payable in
arrears on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate
per annum equal at all times to 1% per annum above the rate per annum required
to be paid on such Revolving Credit Advance pursuant to clause (a)(i) or
(a)(ii) above and (ii) to the fullest extent permitted by law, the amount of
any overdue interest, fee or other amount payable hereunder, from the date
such amount shall be due until such amount shall be paid in full, payable in
arrears on the date such amount shall be paid in full and on demand, at a rate
per annum equal at all times to 1% per annum above the rate per annum required
to be paid on Base Rate Advances pursuant to clause (a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Agent timely information for the purpose of
determining each Eurodollar Rate and each LIBO Rate. If any one or more of the
Reference Banks shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall determine such
interest rate on the basis of timely information furnished by the remaining
Reference Banks. The Agent shall give prompt notice to the Borrower and the
Lenders of the applicable interest rate determined by the Agent for purposes
of Section 2.07(a)(i) or (ii), and the rate, if any, furnished by each
Reference Bank for the purpose of determining the interest rate under Section
2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Agent that the Eurodollar Rate for any Interest Period for
such Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Borrower and the
Lenders, whereupon (i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance, and (ii) the obligation of the Lenders to make, or to Convert
Revolving Credit Advances into, Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01,
the Agent will forthwith so notify the Borrower and the Lenders and the
Borrower shall be deemed to have selected an Interest Period of one month.
(d) Upon the occurrence and during the continuance of any Event of
Default under Section 6.01(a), (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
(e) If fewer than two Reference Banks furnish timely information to
the Agent for determining the Eurodollar Rate or LIBO Rate for any Eurodollar
Rate Advances or LIBO Rate Advances, as the case may be, the Eurodollar Rate
or the LIBO Rate for such Eurodollar Rate Advance or LIBO Rate Advance, as the
case may be, shall be an interest rate per annum determined by the Agent to be
the offered rate per annum at which deposits in U.S. dollars appears on the
Moneyline Telerate Page 3750 (or any successor page) as of 11:00 A.M. (London
time), or in the event such offered rate is not available from the Moneyline
Telerate Page 3750,
(i) the Agent shall forthwith notify the Borrower and the Lenders
that the interest rate cannot be determined for such Eurodollar Rate
Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurodollar Rate Advances, each such Advance
will automatically, on the last day of the then existing Interest Period
therefor, Convert into a
Base Rate Advance (or if such Advance is then a Base Rate Advance, will
continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate Advances or
LIBO Rate Advances or to Convert Revolving Credit Advances into Eurodollar
Rate Advances shall be suspended until the Agent shall notify the Borrower and
the Lenders that the circumstances causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances. The
Borrower may on any Business Day, upon notice given to the Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the
date of the proposed Conversion and subject to the provisions of Sections 2.08
and 2.12, Convert all Revolving Credit Advances of one Type comprising the
same Borrowing into Revolving Credit Advances of the other Type; provided,
however, that any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be in an amount not less than the minimum amount specified in
Section 2.02(b) and no Conversion of any Revolving Credit Advances shall
result in more separate Revolving Credit Borrowings than permitted under
Section 2.02(b). Each such notice of a Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii)
the Revolving Credit Advances to be Converted, and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the initial Interest Period for
each such Advance. Each notice of Conversion shall be irrevocable and binding
on the Borrower.
SECTION 2.10. Optional Prepayments of Revolving Credit Advances. The
Borrower may, in the case of Eurodollar Rate Advances, upon at least two
Business Days' notice to the Agent, and in the case of Base Rate Advances,
upon notice to the Agent not later than 11:00 A.M. on the date of such
proposed prepayment, stating in each case the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding principal amount of the Revolving Credit
Advances comprising part of the same Revolving Credit Borrowing in whole or
ratably in part, together with accrued interest to the date of such prepayment
on the principal amount prepaid; provided, however, that (x) each partial
prepayment shall be in an aggregate principal amount of $5,000,000 for any
Base Rate Advance or $10,000,000 for any Eurodollar Rate Advance or, in each
case, an integral multiple of $1,000,000 in excess thereof and (y) in the
event of any such prepayment of a Eurodollar Rate Advance, the Borrower shall
be obligated to reimburse the Lenders in respect thereof pursuant to Section
8.04(c).
SECTION 2.11. Increased Costs. (a) If, after the date hereof, due to
either (i) the introduction of or any change in or in the interpretation of
any law or regulation or (ii) the compliance with any guideline or request
from any central bank or other governmental authority (whether or not having
the force of law), there shall be any increase in the cost to any Lender
(other than in respect of Eurocurrency Liabilities) of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances (excluding for
purposes of this Section 2.11 any such increased costs resulting from (i)
Taxes or Other Taxes (as to which Section 2.14 shall govern) and (ii) changes
in the basis of taxation of overall net income or overall gross income by the
United States or by the foreign jurisdiction or state under the laws of which
such Lender is organized or has its Applicable Lending Office or any political
subdivision thereof), then the Borrower shall from time to time, upon demand
by such Lender (with a copy of such demand to
the Agent), pay to the Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost. A certificate as
to the amount of such increased cost, setting forth in reasonable detail the
basis therefor and the computation thereof, submitted to the Borrower and the
Agent by such Lender, shall be conclusive and binding for all purposes, absent
manifest error. Notwithstanding the foregoing, none of the Lenders shall
deliver the notice and certificate described in this Section 2.11(a) to the
Borrower in respect of any increased costs except in accordance with the
internal policy of such Lender as to the exercise of similar rights and
remedies in similar circumstances.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) in either case
enacted, adopted or made after the date hereof, affects or would affect the
amount of capital required or expected to be maintained by such Lender or any
corporation controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender's commitment to lend
hereunder and other commitments of this type, then, upon demand by such Lender
(with a copy of such demand to the Agent), the Borrower shall pay to the Agent
for the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation
for the reduction of the rate of return on such Lender's capital or on the
capital of such corporation, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder. A certificate as to such amounts,
setting forth in reasonable detail the basis therefor and the computation
thereof, submitted to the Borrower and the Agent by such Lender shall be
conclusive and binding for all purposes, absent manifest error.
Notwithstanding the foregoing, none of the Lenders shall deliver the notice
and certificate described in this Section 2.11(b) to the Borrower in respect
of any requirements of additional capital except in accordance with the
internal policy of such Lender as to the exercise of similar rights and
remedies in similar circumstances.
(c) If any Lender shall give notice to the Agent and the Borrower at
any time to the effect that Eurocurrency Reserve Requirements are, or are
scheduled to become, effective and that such Lender is or will be generally
subject to such Eurocurrency Reserve Requirements (without regard to whether
such Lender will be able to benefit from proration or offsets that may be
available from time to time under Regulation D) as a result of which such
Lender will incur additional costs, then such Lender shall, for each day from
the later of the date of such notice and the date on which such Eurocurrency
Reserve Requirements become effective, be entitled to additional interest on
each Eurodollar Rate Advance made by it at a rate per annum determined for
such day (rounded upward to the nearest 100th of 1%) equal to the remainder
obtained by subtracting (i) the Eurodollar Rate for such Eurodollar Rate
Advance from (ii) the rate obtained by dividing such Eurodollar Rate by a
percentage equal to 100% minus the then applicable Eurocurrency Reserve
Requirements. Such additional interest will be payable in arrears to the
Agent, for the account of such Lender, on each date that interest is payable
on such Eurodollar Rate Advance. Any Lender which gives a notice under this
paragraph (c) shall promptly withdraw such notice (by written notice of
withdrawal given to the Agent and the Borrower) in the event Eurocurrency
Reserve Requirements cease to apply to it or the circumstances giving rise to
such notice otherwise cease to exist.
(d) Notwithstanding anything to the contrary herein contained, no
Lender shall be entitled to claim any additional amounts pursuant to this
Section 2.11 arising with respect to any period of time prior to the date that
is 60 days prior to the date on which notice of such claim and the basis
therefor is first given to the Borrower pursuant to this Section 2.11.
SECTION 2.12. Illegality. (a) Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Agent that the introduction of
or any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it
is unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or LIBO Rate Advances
or to fund or maintain Eurodollar Rate Advances or LIBO Rate Advances
hereunder, (i) each Eurodollar Rate Advance or LIBO Rate Advance, as the case
may be, of such Lender will automatically, upon such demand, Convert into a
Base Rate Advance or an Advance that bears interest at the rate set forth in
Section 2.07(a)(i), as the case may be, and (ii) the obligation of such Lender
to make Eurodollar Rate Advances or LIBO Rate Advances or to Convert Revolving
Credit Advances into Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Borrower and the Lenders that the circumstances causing
such suspension no longer exist. If any Lender shall exercise its rights under
this Section 2.12(a), all payments and prepayments of principal which would
otherwise have been applied to repay the Eurodollar Rate Advances or LIBO Rate
Advances that would have been made by such Lender or the converted Eurodollar
Rate Advances or LIBO Rate Advances of such Lender shall instead be applied to
repay the Base Rate Advances or Advances bearing interest at the rate set
forth in Section 2.07(a)(i), as the case may be, made by such Lender in lieu
of, or resulting from the conversion of, such Eurodollar Rate Advances or LIBO
Rate Advances, and all distributions of payments in respect of interest shall
be made to the Lenders ratably based on the interest rates applicable to their
respective Advances.
(b) For purposes of this Section 2.12, a notice to the Borrower by
any Lender shall be effective as to each Eurodollar Rate Advance or LIBO Rate
Advance, if lawful, on the last day of the Interest Period currently
applicable to such Eurodollar Rate Advance or LIBO Rate Advance; in all other
cases such notice shall be effective on the date of receipt by the Borrower.
SECTION 2.13. Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes not later than 12:00 noon (New York
City time) on the day when due in U.S. dollars to the Agent at the Agent's
Account in same day funds. The Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or
facility fees ratably (other than amounts payable pursuant to Section 2.03,
2.11, 2.14 or 8.04(c)) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of any
other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 8.07(c), from and after the effective date specified in such
Assignment and Acceptance, the Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves. Upon any Assuming Lender becoming
a Lender hereunder as a result of the effectiveness of a Commitment Increase
pursuant to Section 2.05(b) or an extension of the Termination Date pursuant
to Section 2.17 and upon the Agent's receipt of such Lender's Assumption
Agreement and recording of the information contained therein in the Register,
from and after the applicable Increase Date or Extension Date, as the case may
be, the Agent shall make all payments hereunder and under any Notes issued in
connection therewith in respect of the interest assumed thereby to the
Assuming Lender.
(b) All computations of interest based on Citibank's base rate shall
be made by the Agent on the basis of a year of 365 or 366 days, as the case
may be, and all computations of interest based on the Eurodollar Rate or the
Federal Funds Rate and of facility fees shall be made by the Agent on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest or facility fees are payable. Each determination by
the Agent of an interest rate hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or facility
fee, as the case may be; provided, however, that, if such extension would
cause payment of interest on or principal of Eurodollar Rate Advances or LIBO
Rate Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.
(d) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Lenders 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 Lender
on such due date an amount equal to the amount then due such Lender. If and to
the extent the Borrower shall not have so made such payment in full to the
Agent, each Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from
the date such amount is distributed to such Lender until the date such Lender
repays such amount to the Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and
the Agent, taxes imposed on its overall net income, and franchise taxes
imposed on it in lieu of net income taxes, by the jurisdiction under the laws
of which such Lender or the Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed
on its overall net income, and franchise taxes imposed on it in lieu of net
income taxes, by the jurisdiction of such Lender's Applicable Lending Office
or any political subdivision thereof, and further excluding, if any Lender is
found as the result of a determination (as defined in Section 1313(a) of the
Internal Revenue Code) to be a conduit entity participating in a conduit
financing arrangement as defined in Treasury Regulations promulgated under
Section 7701(1) of the Internal Revenue Code, the excess of the United States
taxes imposed with respect to such
Lender over the amount of United States taxes that would have been imposed
with respect to such Lender if such determination had not been made with
respect to such Lender (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder or under any Note to any Lender or the Agent, (i)
the sum payable shall be increased as may be necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 2.14) such Lender or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii)
the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, performing under, or
otherwise with respect to, this Agreement or the Notes (hereinafter referred
to as "Other Taxes").
(c) The Borrower shall indemnify each Lender and the Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any taxes
imposed by any jurisdiction on amounts payable under this Section 2.14)
imposed on or paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or
with respect thereto. This indemnification shall be made within 30 days from
the date such Lender or the Agent (as the case may be) makes written demand
therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent, at its address referred to in Section
8.02, the original or a certified copy of a receipt evidencing payment
thereof. In the case of any payment hereunder or under the Notes by or on
behalf of the Borrower through an account or branch outside the United States
or by or on behalf of the Borrower by a payor that is not a United States
person, if the Borrower determines that no Taxes are payable in respect
thereof, the Borrower shall furnish, or shall cause such payor to furnish, to
the Agent, at such address, an opinion of counsel acceptable to the Agent
stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States" and "United
States person" shall have the meanings specified in Section 7701 of the
Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of
this Agreement in the case of each Initial Lender and on the date of the
Assumption Agreement or the Assignment and Acceptance, as the case may be,
pursuant to which it becomes a Lender in the case of each other Lender, and
from time to time thereafter as requested in writing by the Borrower (but only
so long as such Lender remains lawfully able to do so), shall provide each of
the Agent and the Borrower with two original Internal Revenue Service forms
W-8BEN or W-8ECI, as appropriate, or any successor or other form prescribed by
the Internal Revenue Service, certifying that such Lender is exempt from or
entitled to a reduced rate of United States withholding tax on payments
pursuant to this Agreement or the Notes. If the forms provided by a Lender at
the time such
Lender first becomes a party to this Agreement indicate a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender provides
the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from
Taxes for periods governed by such forms; provided, however, that, if at the
date of the Assumption Agreement or the Assignment and Acceptance, as the case
may be, pursuant to which a Lender assignee becomes a party to this Agreement,
the Lender assignor was entitled to payments under subsection (a) in respect
of United States withholding tax with respect to interest paid at such date,
then, to such extent, the term Taxes shall include (in addition to withholding
taxes that may be imposed in the future or other amounts otherwise includable
in Taxes) United States withholding tax, if any, applicable with respect to
the Lender assignee on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date
hereof by Internal Revenue Service form W-8BEN or W-8ECI, that the Lender
reasonably considers to be confidential, the Lender shall give notice thereof
to the Borrower and shall not be obligated to include in such form or document
such confidential information.
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 2.14(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such
form otherwise is not required under the first sentence of subsection (e)
above), such Lender shall not be entitled to indemnification under Section
2.14(a) or (c) with respect to Taxes imposed by the United States by reason of
such failure; provided, however, that should a Lender become subject to Taxes
because of its failure to deliver a form required hereunder, the Borrower
shall take such steps as the Lender shall reasonably request to assist the
Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant to
this Section 2.14 agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any additional amounts that
may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Revolving Credit Advances owing to
it (other than pursuant to Section 2.11, 2.14 or 8.04(c)) in excess of its
ratable share of payments on account of the Revolving Credit Advances obtained
by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Revolving Credit Advances owing to them as
shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any portion of
such excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to
the purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) for
general corporate purposes of the Borrower and its Subsidiaries, including
acquisitions, stock repurchases and commercial paper backstop.
SECTION 2.17. Extension of Termination Date. (a) At least 30 days
but not more than 45 days prior to the Termination Date, the Borrower, by
written notice to the Agent, may request an extension of the Termination Date
in effect at such time by 364 days from its then scheduled expiration. The
Agent shall promptly notify each Lender of such request, and each Lender shall
in turn, in its sole discretion, not later than 20 days prior to the
Termination Date, notify the Borrower and the Agent in writing as to whether
such Lender will consent to such extension. If any Lender shall fail to notify
the Agent and the Borrower in writing of its consent to any such request for
extension of the Termination Date at least 20 days prior to the Termination
Date, such Lender shall be deemed to be a Non-Consenting Lender with respect
to such request. The Agent shall notify the Borrower not later than 15 days
prior to the Termination Date of the decision of the Lenders regarding the
Borrower's request for an extension of the Termination Date.
(b) If all the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.17, the Termination Date in
effect at such time shall, effective as at the Termination Date (the
"Extension Date"), be extended for 364 days; provided that on each Extension
Date the applicable conditions set forth in Article III shall be satisfied. If
less than all of the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.17, the Termination Date in
effect at such time shall, effective as at the applicable Extension Date and
subject to subsection (d) of this Section 2.17, be extended as to those
Lenders that so consented (each a "Consenting Lender") but shall not be
extended as to any other Lender (each a "Non-Consenting Lender"). To the
extent that the Termination Date is not extended as to any Lender pursuant to
this Section 2.17 and the Commitment of such Lender is not assumed in
accordance with subsection (c) of this Section 2.17 on or prior to the
applicable Extension Date, the Commitment of such Non-Consenting Lender shall
automatically terminate in whole on such unextended Termination Date without
any further notice or other action by the Borrower, such Lender or any other
Person; provided that such Non-Consenting Lender's rights under Sections 2.11,
2.14 and 8.04, and its obligations under Section 7.05, shall survive the
Termination Date for such Lender as to matters occurring prior to such date.
It is understood and agreed that no Lender shall have any obligation
whatsoever to agree to any request made by the Borrower for any requested
extension of the Termination Date.
(c) If less than all of the Lenders consent to any such request
pursuant to subsection (a) of this Section 2.17, the Agent shall promptly so
notify the Consenting Lenders, and each Consenting Lender may, in its sole
discretion, give written notice to the Agent not later than 10 days prior to
the Termination Date of the amount of the Non-Consenting Lenders'
Commitments for which it is willing to accept an assignment. If the Consenting
Lenders notify the Agent that they are willing to accept assignments of
Commitments in an aggregate amount that exceeds the amount of the Commitments
of the Non-Consenting Lenders, such Commitments shall be allocated among the
Consenting Lenders willing to accept such assignments in such amounts as are
agreed between the Borrower and the Agent. If after giving effect to the
assignments of Commitments described above there remains any Commitments of
Non-Consenting Lenders, the Borrower may arrange for one or more Consenting
Lenders or other Eligible Assignees as Assuming Lenders to assume, effective
as of the Extension Date, any Non-Consenting Lender's Commitment and all of
the obligations of such Non-Consenting Lender under this Agreement thereafter
arising, without recourse to or warranty by, or expense to, such
Non-Consenting Lender; provided, however, that the amount of the Commitment of
any such Assuming Lender as a result of such substitution shall in no event be
less than $10,000,000 unless the amount of the Commitment of such
Non-Consenting Lender is less than $10,000,000, in which case such Assuming
Lender shall assume all of such lesser amount; and provided further that:
(i) any such Consenting Lender or Assuming Lender shall have paid to
such Non-Consenting Lender (A) the aggregate principal amount of, and any
interest accrued and unpaid to the effective date of the assignment on,
the outstanding Advances, if any, of such Non-Consenting Lender plus (B)
any accrued but unpaid facility fees owing to such Non-Consenting Lender
as of the effective date of such assignment;
(ii) all additional costs reimbursements, expense reimbursements and
indemnities payable to such Non-Consenting Lender, and all other accrued
and unpaid amounts owing to such Non-Consenting Lender hereunder, as of
the effective date of such assignment shall have been paid to such
Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 8.07(a) for such
assignment shall have been paid;
provided further that such Non-Consenting Lender's rights under Sections 2.11,
2.14 and 8.04, and its obligations under Section 7.05, shall survive such
substitution as to matters occurring prior to the date of substitution. At
least three Business Days prior to any Extension Date, (A) each such Assuming
Lender, if any, shall have delivered to the Borrower and the Agent an
Assumption Agreement, duly executed by such Assuming Lender, such
Non-Consenting Lender, the Borrower and the Agent, (B) any such Consenting
Lender shall have delivered confirmation in writing satisfactory to the
Borrower and the Agent as to the increase in the amount of its Commitment and
(C) each Non-Consenting Lender being replaced pursuant to this Section 2.17
shall have delivered to the Agent any Note or Notes held by such
Non-Consenting Lender. Upon the payment or prepayment of all amounts referred
to in clauses (i), (ii) and (iii) of the immediately preceding sentence, each
such Consenting Lender or Assuming Lender, as of the Extension Date, will be
substituted for such Non-Consenting Lender under this Agreement and shall be a
Lender for all purposes of this Agreement, without any further acknowledgment
by or the consent of the other Lenders, and the obligations of each such
Non-Consenting Lender hereunder shall, by the provisions hereof, be released
and discharged.
(d) If (after giving effect to any assignments or assumptions
pursuant to subsection (c) of this Section 2.17) Lenders having Commitments
equal to at least 50% of the Commitments in effect immediately prior to the
Extension Date consent in writing to a requested extension (whether by
execution or delivery of an Assumption Agreement or otherwise) not later than
one Business Day prior to such Extension Date, the Agent shall so notify the
Borrower, and, subject to the satisfaction to the applicable conditions in
Article III, the Termination Date then in effect shall be extended for the
additional 364-day period as described in subsection (a) of this Section 2.17,
and all references in this Agreement, and in the Notes, if any, to the
"Termination Date" shall, with respect to each Consenting Lender and each
Assuming Lender for such Extension Date, refer to the Termination Date as so
extended. Promptly following each Extension Date, the Agent shall notify the
Lenders (including, without limitation, each Assuming Lender) of the extension
of the scheduled Termination Date in effect immediately prior thereto and
shall thereupon record in the Register the relevant information with respect
to each such Consenting Lender and each such Assuming Lender.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
and 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on
and as of the first date (the "Effective Date") on which the following
conditions precedent have been satisfied:
(a) The Borrower shall have paid all accrued fees and expenses of
the Agent and the Lenders (including the accrued fees and expenses of
counsel to the Agent).
(b) On the Effective Date, the following statements shall be true
and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Borrower, dated
the Effective Date, stating that:
(i) The representations and warranties contained in Section
4.01 are correct in all material respects on and as of the Effective
Date, and
(ii) No event has occurred and is continuing that constitutes a
Default.
(c) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance satisfactory to
the Agent and (except for the Revolving Credit Notes) in sufficient
copies for each Lender:
(i) The Revolving Credit Notes to the order of the Lenders,
respectively.
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement and the Notes,
and of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and
the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary
of the Borrower certifying the names and true signatures of the
officers of the Borrower authorized to sign this Agreement and the
Notes and the other documents to be delivered hereunder.
(iv) A favorable opinion of Diana M. Daniels, general counsel
for the Borrower, substantially in the form of Exhibit E-1 hereto
and as to such other matters as any Lender through the Agent may
reasonably request.
(v) A favorable opinion of Shearman & Sterling LLP, counsel for
the Agent, in form and substance satisfactory to the Agent.
(d) The Borrower shall have terminated the commitments, and paid in
full all Debt, interest, fees and other amounts outstanding, under the
364-Day Credit Agreement dated as of August 14, 2002 among the Borrower,
the lenders parties thereto, SunTrust Bank and Wachovia Bank, National
Association, as syndication agents, JPMorgan Chase Bank and Bank One, NA,
as documentation agents, and Citibank, as administrative agent for the
lenders, and each of the Lenders that is a party to such credit agreement
hereby waives, upon execution of this Agreement, the requirement of prior
notice under such credit agreement relating to the termination of
commitments thereunder.
SECTION 3.02. Conditions Precedent to Each Revolving Credit
Borrowing, Increase Date and Extension Date. The obligation of each Lender to
make a Revolving Credit Advance on the occasion of each Revolving Credit
Borrowing (other than a Competitive Bid Advance), each Commitment Increase and
each extension of Commitments pursuant to Section 2.17 shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the
date of such Revolving Credit Borrowing, such Increase Date or such Extension
Date the following statements shall be true (and each of the giving of the
applicable Notice of Revolving Credit Borrowing, request for Commitment
Increase, request for Commitment Extension and the acceptance by the Borrower
of the proceeds of such Revolving Credit Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such Revolving
Credit Borrowing, such Increase Date or such Extension Date such statements
are true):
(a) the representations and warranties contained in Section 4.01
and, so long as the Subsidiary Guaranty is in effect, in Section 6 of the
Subsidiary Guaranty are correct in all material respects on and as of
date of such Revolving Credit Borrowing, such Increase Date or such
Extension Date, before and after giving effect to such Revolving Credit
Borrowing, such Increase Date or such Extension Date and to the
application of the proceeds therefrom, as though made on and as of such
date except to the extent such representations and warranties expressly
relate to an earlier date, and
(b) no event has occurred and is continuing, or would result from
such Revolving Credit Borrowing, such Increase Date or such Extension
Date or from the application of the proceeds therefrom, that constitutes
a Default.
SECTION 3.03. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a
Competitive Bid Borrowing to make such Competitive Bid Advance as part of such
Competitive Bid Borrowing is subject to the conditions precedent that (i) the
Agent shall have received the written confirmatory Notice of Competitive Bid
Borrowing with respect thereto, (ii) on or before the date of such Competitive
Bid Borrowing, but prior to such Competitive Bid Borrowing, the Agent shall
have received a Competitive Bid Note payable to the order of such Lender for
each of the one or more Competitive Bid Advances to be made by such Lender as
part of such Competitive Bid Borrowing, in a principal amount equal to the
principal amount of the Competitive Bid Advance to be evidenced thereby and
otherwise on such terms as were agreed to for such Competitive Bid Advance in
accordance with Section 2.03, and (iii) on the date of such Competitive Bid
Borrowing the following statements shall be true (and each of the giving of
the applicable Notice of Competitive Bid Borrowing and the acceptance by the
Borrower of the proceeds of such Competitive Bid Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such
Competitive Bid Borrowing such statements are true):
(a) the representations and warranties contained in Section 4.01
and, so long as the Subsidiary Guaranty is in effect, in Section 6 of the
Subsidiary Guaranty are correct in all material respects on and as of the
date of such Competitive Bid Borrowing, before and after giving effect to
such Competitive Bid Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and
(b) no event has occurred and is continuing, or would result from
such Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
SECTION 3.04. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders
unless an officer of the Agent responsible for the transactions contemplated
by this Agreement shall have received notice from such Lender prior to the
date that the Borrower, by notice to the Lenders, designates as the proposed
Effective Date, specifying its objection thereto. The Agent shall promptly
notify the Lenders and the Borrower of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes, and the consummation of the transactions
contemplated
hereby, are within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, and do not contravene (i) the Borrower's
charter or by-laws or (ii) law or any contractual restriction binding on or
affecting the Borrower.
(c) No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any other third
party is required for the due execution, delivery and performance by the
Borrower of this Agreement or the Notes.
(d) This Agreement has been, and each of the Notes when delivered
hereunder will have been, duly executed and delivered by the Borrower. This
Agreement is, and each of the Notes when delivered hereunder will be, the
legal, valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with their respective terms.
(e) The Consolidated balance sheet of the Borrower and its Subsidiaries
as at December 29, 2002, and the related Consolidated statements of income and
cash flows of the Borrower and its Subsidiaries for the fiscal year then
ended, accompanied by an opinion of PricewaterhouseCoopers LLP, independent
public accountants, and the condensed Consolidated balance sheet of the
Borrower and its Subsidiaries as at March 31, 2003, and the related condensed
Consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the three months then ended, duly certified by the chief
financial officer of the Borrower, copies of which have been furnished to each
Lender, fairly present, subject in the case of said balance sheet as at March
31, 2003, and said statements of income and cash flows for the three months
then ended, to year-end audit adjustments and to the absence of footnote
disclosure, the Consolidated financial condition of the Borrower and its
Subsidiaries as at such dates and the Consolidated results of the operations
of the Borrower and its Subsidiaries for the periods ended on such dates, all
in accordance with generally accepted accounting principles consistently
applied. Between December 29, 2002 and the date hereof, there has been no
Material Adverse Change.
(f) There is no pending or threatened action, suit, investigation,
litigation or proceeding, including, without limitation, any Environmental
Action, affecting the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) is pending or threatened on the
date hereof and is reasonably likely to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of this Agreement
or any Note or the consummation of the transactions contemplated hereby.
(g) The Borrower is not, and immediately after the application by the
Borrower of the proceeds of each Advance will not be an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(h) After giving effect to the application of the proceeds of each
Advance, not more than 25% of the value of the assets of the Borrower and its
Subsidiaries (as determined in good faith by the Borrower) subject to the
provisions of Section 5.02(a) or
subject to any restriction contained in any agreement or instrument between
the Borrower and any Lender or any Affiliate of any Lender relating to Debt
and within the scope of Section 6.01(d) will consist of or be represented by
Margin Stock.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA and Environmental Laws, except to the
extent that any failures to so comply, individually or in the aggregate,
would not be reasonably likely to have a Material Adverse Effect;
provided, however, that neither the Borrower nor any of its Subsidiaries
shall be required to comply with any law, rule, regulation or order to
the extent it is being contested in good faith and by proper proceedings
and as to which appropriate reserves are being maintained.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become
delinquent, all material taxes, assessments and governmental charges or
levies imposed upon it or upon its property; provided, however, that
neither the Borrower nor any of its Subsidiaries shall be required to pay
or discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained.
(c) Maintenance of Insurance. Maintain, and cause each of its
Significant Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and
covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in
which the Borrower or such Significant Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and so long as the Subsidiary Guaranty is in effect, cause the Newspaper
Subsidiary to preserve and maintain, its corporate or other legal
existence, rights (charter and statutory) and franchises if the loss or
failure to maintain the same could, individually or in the aggregate, be
reasonably likely to have a Material Adverse Effect; provided, however,
that the Borrower and the Newspaper Subsidiary may consummate any merger,
consolidation or other transaction permitted under Section 5.02(b),
including the Restructuring.
(e) Visitation Rights. At any reasonable time and from time to time
on reasonable notice and at reasonable intervals, permit the Agent or any
of the Lenders, or
any agents or representatives thereof, to visit the properties of the
Borrower and any of its Subsidiaries and to discuss the affairs, finances
and accounts of the Borrower and any of its Subsidiaries with any of
their officers or directors and, during the continuance of any Default,
to examine and make copies of and abstracts from the records and books of
account of the Borrower and any of its Subsidiaries and to discuss the
affairs, finances and accounts of the Borrower and any of its
Subsidiaries with their independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which entries shall be made
of all financial transactions and the assets and business of the Borrower
and each such Subsidiary in accordance with generally accepted accounting
principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Significant Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted, except to
the extent that any failure to do so, individually or in the aggregate,
would not be reasonably likely to have a Material Adverse Effect.
(h) Primary Business. The Borrower shall continue to be engaged
primarily in lines of business as carried on at the date hereof or lines
of business related thereto.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 55 days after
the end of each of the first three quarters of each fiscal year of
the Borrower, the Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such quarter and Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, duly certified
(subject to year-end audit adjustments) by the chief financial
officer of the Borrower as having been prepared in accordance with
generally accepted accounting principles and certificates of the
chief financial officer of the Borrower as to compliance with the
terms of this Agreement, provided that in the event of any
change in GAAP used in the preparation of such financial statements,
the Borrower shall also provide, if necessary for the determination
of compliance with Section 5.03, a statement of reconciliation
conforming such financial statements to GAAP;
(ii) as soon as available and in any event within 105 days
after the end of each fiscal year of the Borrower, a copy of the
annual audit report for such year for the Borrower and its
Subsidiaries, containing the Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal year and
Consolidated statements of income and cash flows of the Borrower and
its Subsidiaries for such fiscal year, in each case accompanied by
an opinion by PricewaterhouseCoopers LLP or other independent public
accountants of recognized national standing, provided that in the
event of any change in GAAP
used in the preparation of such financial statements, the Borrower
shall also provide, if necessary for the determination of compliance
with Section 5.03, a statement of reconciliation conforming such
financial statements to GAAP;
(iii) as soon as possible and in any event within seven days
after the occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer of the
Borrower setting forth details of such Default and the action that
the Borrower has taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies of
all quarterly and annual reports and proxy solicitations that the
Borrower sends to its public securityholders generally, and copies
of all reports on Form 8-K and registration statements for the
public offering (other than pursuant to employee Plans) of
securities that the Borrower files with the Securities and Exchange
Commission or any national securities exchange;
(v) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Borrower or any of its Subsidiaries of the
type described in Section 4.01(f); and
(vi) such other information respecting the Borrower or any of
its Subsidiaries as any Lender through the Agent may from time to
time reasonably request.
(j) Restructuring. Deliver to the Agent not later than five (5)
Business Days after the completion of the Restructuring, in sufficient
copies for each Lender:
(i) An assignment and assumption agreement, substantially in
the form of Exhibit G hereto (the "New Borrower Assignment"), duly
executed by the parties thereto.
(ii) Certified copies of the resolutions of the Board of
Directors of (x) the New Borrower approving or ratifying the New
Borrower Assignment and the assumption by the New Borrower of the
obligations of the Borrower under the Credit Agreement and the Notes
and (y) the Newspaper Subsidiary approving or ratifying the
Subsidiary Guaranty.
(iii) A certificate of the Secretary or an Assistant Secretary
of each of the New Borrower and the Newspaper Subsidiary certifying
the names and true signatures of the officers of such Loan Party
authorized to sign each Loan Document to which it is a party and the
other documents to be delivered by it hereunder.
(iv) A guaranty in substantially the form of Exhibit F hereto
(as amended, supplemented or otherwise modified from time to time,
the "Subsidiary Guaranty"), duly executed by the Newspaper
Subsidiary.
(v) Favorable opinions of in-house counsel for each of the New
Borrower and the Newspaper Subsidiary, substantially in the forms of
Exhibits E-2 and E-3 hereto, respectively.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will
not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect to
any of its properties (which for purposes of this subsection (a) shall be
deemed not to include shares of the Borrower's capital stock), whether
now owned or hereafter acquired, or assign, or permit any of its
Subsidiaries to assign, any right to receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real property or
equipment acquired or held by the Borrower or any Subsidiary in the
ordinary course of business to secure the purchase price of such
property or equipment or to secure Debt incurred solely for the
purpose of financing the acquisition of such property or equipment,
or Liens existing on such property or equipment at the time of its
acquisition (other than any such Liens created in contemplation of
such acquisition that were not incurred to finance the acquisition
of such property) or extensions, renewals or replacements of any of
the foregoing for the same or a lesser amount, provided, however,
that no such Lien shall extend to or cover any properties of any
character other than the real property or equipment being acquired
(or, in the case of improvements to real property, the real property
being improved), and no such extension, renewal or replacement shall
extend to or cover any properties not theretofore subject to the
Lien being extended, renewed or replaced,
(iii) the Liens existing on the Effective Date and described on
Schedule 5.02(a) hereto,
(iv) Liens securing Debt payable to the Borrower,
(v) other Liens securing Debt in an aggregate principal amount
not to exceed at any time outstanding an amount equal to 20% of
Consolidated Shareholders' Equity, and
(vi) the replacement, extension or renewal of any Lien
permitted by clause (iii) above upon or in the same property
theretofore subject thereto or the replacement, extension or renewal
(without increase in the amount) of the Debt secured thereby.
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in
a series of transactions) all or substantially all of its assets (whether
now owned or hereafter acquired) to, any Person, or so long as the
Subsidiary Guaranty is in effect, permit the Newspaper Subsidiary to do
any of the foregoing, provided that the Borrower and the Newspaper
Subsidiary may (i) merge or consolidate with any other Person so long as
the Borrower or the Newspaper Subsidiary, as the case may be, is the
surviving entity and (ii) consummate the Restructuring and provided
further that no Default shall have occurred and be continuing at the time
of such proposed transaction or would result therefrom.
(c) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as permitted by generally accepted accounting
principles and, in the case of any significant change, concurred with by
the Borrower's independent public accountants.
SECTION 5.03. Financial Covenant. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will
maintain Consolidated Shareholders' Equity of not less than $1,000,000,000.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events
of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance when
the same becomes due and payable (or, if any such failure is due solely
to technical or administrative difficulties relating to the transfer of
such principal payment, within two Business Days after the same becomes
due and payable); or the Borrower shall fail to pay any interest on any
Advance or make any other payment of fees or other amounts payable under
this Agreement or any Note within three Business Days after the same
becomes due and payable; or
(b) Any representation or warranty made by any Loan Party in any
Loan Document or by any Loan Party (or any of its officers) in connection
with any Loan Document shall prove to have been incorrect in any material
respect when made; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d) or (i)(iii), 5.02 or
5.03, or (ii) the Borrower shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its part to be
performed or observed if such failure shall remain unremedied for 20 days
after written notice thereof shall have been given to the Borrower by the
Agent or any Lender; or
(d) The Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt (other than Non-Recourse
Debt) that is outstanding in a principal amount of at least $40,000,000
in the aggregate (but excluding Debt outstanding hereunder) of the
Borrower or such Subsidiary (as the case may be), when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after
the applicable
grace period, if any, specified in the agreement or instrument relating
to such Debt; or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Debt and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt;
or
(e) The Borrower or any of its Significant Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any of its Significant
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, custodian or other similar official for it or for
any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 60 days,
or in such proceeding the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property shall occur; or the
Borrower or any of its Significant Subsidiaries shall take any corporate
action to authorize any of the actions set forth above in this subsection
(e); or
(f) Any judgment or order of a court of competent jurisdiction for
the payment of money in excess of $20,000,000 shall be rendered against
the Borrower or any of its Significant Subsidiaries and either (i)
enforcement proceedings shall have been legally commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 60
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect
provided, however, that any such judgment or order shall not be an Event
of Default under this Section 6.01(f) if and for so long as (x) the
amount of such judgment or order is covered by a valid and binding policy
of insurance between the defendant and the insurer covering payment
thereof and (y) such insurer, which shall be rated at least "A-" by A.M.
Best Company, has been notified of, and has not disputed the claim made
for payment of, the amount of such judgment or order; or
(g) (i) Any Person or two or more Persons acting in concert (other
than the Graham Interests) shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or
indirectly, of Voting Stock of the Borrower (or other securities
convertible into such Voting Stock) representing 30% or more of the
combined voting power of all Voting Stock of the Borrower and such
combined voting power exceeds the then current voting power of the Voting
Stock of the Borrower (or other securities convertible into such Voting
Stock) controlled by the Graham Interests; or (ii) Continuing Directors
of the Borrower shall cease for any reason to constitute a majority of
the board of directors of the Borrower; or
(h) The Borrower or any of its ERISA Affiliates shall incur
liability as a result of one or more of the following: (i) the occurrence
of any ERISA Event; (ii) the partial or complete withdrawal of the
Borrower or any of its ERISA Affiliates from a Multiemployer Plan; or
(iii) the reorganization or termination of a Multiemployer Plan; and, in
the reasonable opinion of the Required Lenders, such incurrence would be
likely to result in a Material Adverse Effect, provided that any such
liability in an amount not to exceed $20,000,000 shall be deemed not to
be likely to result in a Material Adverse Effect;
then, and in any such event, the Agent (i) shall at the request, or may with
the consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated, whereupon the
same shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
Notes, all interest thereon and all other amounts payable under this Agreement
to be forthwith due and payable, whereupon the Notes, all such interest and
all such amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower; provided, however, that in the event
of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender
to make Advances shall automatically be terminated and (B) the Notes, all such
interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all
of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of
the Notes), the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall
be fully protected in so acting or refraining from acting) upon the
instructions of the Required Lenders, and such instructions shall be binding
upon all Lenders and all holders of Notes; provided, however, that the Agent
shall not be required to take any action that exposes the Agent to personal
liability or that is contrary to this Agreement or applicable law. The Agent
agrees to give to each Lender prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken
or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may
treat the payee of any Note as the holder thereof until the Agent receives and
accepts an Assumption Agreement entered into by an Assuming Lender as provided
in Section
2.05(b) or 2.17, as the case may be, or an Assignment and Acceptance entered
into by the Lender that is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 8.07; (ii) may consult
with legal counsel (including 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 in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for
any statements, warranties or representations (whether written or oral) made
in or in connection with this Agreement; (iv) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement on the part of the Borrower
or to inspect the property (including the books and records) of the Borrower;
(v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement
or any other instrument or document furnished pursuant hereto; and (vi) shall
incur no liability under or in respect of this Agreement by acting upon any
notice, consent, certificate or other instrument or writing (which may be by
telecopier, telegram or telex) reasonably believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its Commitment,
the Advances made by it and the Note issued to it, Citibank shall have the
same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or
own securities of the Borrower or any such Subsidiary, all as if Citibank were
not the Agent and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent
or any other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the Agent
(to the extent not reimbursed by the Borrower), ratably according to the
respective principal amounts of the Revolving Credit Notes then held by each
of them (or if no Revolving Credit Notes are at the time outstanding or if any
Revolving Credit Notes are held by Persons that are not Lenders, ratably
according to the respective amounts of their Commitments), from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the Agent
in any way relating to or arising out of this Agreement or any action taken or
omitted by the Agent under this Agreement, provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any
such resignation or removal, the Required Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed
by the Required Lenders, and shall have accepted such appointment, within 30
days after the retiring Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Agent, then the retiring Agent may,
on behalf of the Lenders, appoint a successor Agent, which shall be a
commercial bank organized under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article VII shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
SECTION 7.07. Documentation Agents and Syndication Agents. Wachovia
Bank, National Association and SunTrust Bank have been designated as
syndication agents and JPMorgan Chase Bank and Bank One, NA have been
designated as documentation agents in recognition of their respective
Commitments, and the use of such title does not impose on such Lender any
duties or obligations greater than those of any other Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of any Loan Documents, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless
in writing and signed by all the Lenders, do any of the following: (a) waive
any of the conditions specified in Section 3.01, (b) increase the Commitments
of the Lenders other than as provided in Section 2.05(b), (c) reduce the
principal of, or interest on, the Revolving Credit Notes or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Revolving Credit Notes or any fees or other
amounts payable hereunder, (e) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Revolving Credit Notes that shall
be required for the Lenders or any of them to take any action hereunder or (f)
amend this Section 8.01; provided further that no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the Agent
under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic
or telex communication) and telecopied, telegraphed, telexed or delivered, if
to the Borrower, at its address at 1150 15th Street, N.W., Washington, D.C.
20071, Attention: Treasurer; if to any Initial Lender, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to any other
Lender, at its Domestic Lending Office specified in the Assumption Agreement
or the Assignment and Acceptance pursuant to which it became a Lender; and if
to the Agent, at its address at Two Penns Way, Suite 200, New Castle, Delaware
19720, Attention: Bank Loan Syndications; or, as to the Borrower or the Agent,
at such other address as shall be designated by such party in a written notice
to the other parties and, as to each other party, at such other address as
shall be designated by such party in a written notice to the Borrower and the
Agent. All such notices and communications shall, when hand delivered,
telecopied, telegraphed or telexed, be effective when received. Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on
demand all reasonable out-of-pocket costs and expenses of the Agent in
connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other
documents to be delivered hereunder, including, without limitation, (A) all
due diligence, syndication (including printing, distribution and bank
meetings), transportation and duplication expenses, and (B) the reasonable
fees and expenses of counsel for the Agent with respect thereto and with
respect to advising the Agent as to its rights and responsibilities under this
Agreement. The Borrower further agrees to pay on demand all reasonable
out-of-pocket costs and expenses of the Agent and the Lenders, if any
(including, without limitation, reasonable counsel fees and expenses), in
connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, reasonable fees and
expenses of counsel for the Agent and each Lender in connection with the
enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Agent and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of
or in connection with or by reason of, or in connection with the preparation
for a defense of, any investigation, litigation or proceeding arising out of,
related to or in connection with the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances, whether or not such investigation, litigation or proceeding
is brought by the Borrower, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated, except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence
or willful misconduct or breach of its obligations under this Agreement.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance or LIBO Rate Advance is made by the Borrower to or for the
account of a Lender other than on the last day of the Interest Period for such
Advance, as a result of a payment or Conversion pursuant to Section 2.08(d) or
(e), 2.09, 2.10 or 2.12, acceleration of the maturity of the Notes pursuant to
Section 6.01 or for any other reason, or by an Eligible Assignee to a Lender
other than on the last day of an Interest Period for such Advance upon an
assignment of rights and obligations under this Agreement pursuant to Section
8.07 as a result of a demand by the Borrower pursuant to Section 8.07(a), the
Borrower shall, upon demand by such Lender (with a copy of such demand to the
Agent), pay to the Agent for the account of such Lender any amounts required
to compensate such Lender for any additional losses, costs or expenses that it
may reasonably incur as a result of such payment or Conversion, including,
without limitation, any loss (excluding loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained
in Sections 2.11, 2.14 and 8.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the
Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the Agent
to declare the Notes due and payable pursuant to the provisions of Section
6.01, each Lender and each of its Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such
Lender or such Affiliate to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or hereafter
existing under this Agreement and the Note held by such Lender, whether or not
such Lender shall have made any demand under this Agreement or such Note and
although such obligations may be unmatured. Each Lender agrees promptly to
notify the Borrower after any such set-off and application, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its Affiliates under this Section
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) that such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
(other than Sections 2.01 and 2.03, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Agent and when the Agent
shall have been notified by each Initial Lender that such Initial Lender has
executed it and thereafter shall be binding upon and inure to the benefit of
the Borrower, the Agent and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its
rights hereunder or any interest herein without the prior written consent of
the Lenders; provided that upon completion of the Restructuring, the
Borrower's assignment to the New Borrower of the Borrower's rights hereunder,
and the New Borrower's assumption thereof, shall not require the prior written
consent of the Lenders, and after such assignment and assumption is effective
(i) this Agreement shall be binding on and inure to the benefit of the New
Borrower and (ii) the Newspaper Subsidiary shall be released from its rights
and obligations under this Agreement and the other Loan Documents other than
the Subsidiary Guaranty.
SECTION 8.07. Assignments and Participations. (a) Each Lender may
with the consent of the Agent and the Borrower (which consent shall not be
unreasonably withheld or delayed) and, if demanded by the Borrower (following
a demand by such Lender pursuant to Section 2.11 or 2.14 or following such
Lender's Downgrade) at a time when no Default has occurred and is continuing
upon at least five Business Days' notice to such Lender and the Agent, will
assign to one or more Persons all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Revolving Credit Advances owing to it and the Revolving Credit
Note or Notes held by it); provided, however, that (i) each such assignment
shall be of a constant, and not a varying, percentage of all rights and
obligations under this Agreement (other than any right to make Competitive Bid
Advances, Competitive Bid Advances owing to it and Competitive Bid Notes),
(ii) except in the case of an assignment to a Person that, immediately prior
to such assignment, was a Lender or an assignment of all of a Lender's rights
and obligations under this Agreement, the amount of the Commitment of the
assigning Lender being assigned pursuant to each such assignment (determined
as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $10,000,000 or an integral multiple
of $1,000,000 in excess thereof and the amount of the Commitment of such
Lender remaining after such assignment shall not be less than $10,000,000 or
shall be zero, (iii) each such assignment shall be to an Eligible Assignee,
(iv) each such assignment made as a result of a demand by the Borrower
pursuant to this Section 8.07(a) shall be arranged by the Borrower after
consultation with the Agent and shall be either an assignment of all of the
rights and obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments that together cover all of
the rights and obligations of the assigning Lender under this Agreement, (v)
no Lender shall be obligated to make any such assignment as a result of a
demand by the Borrower pursuant to this Section 8.07(a) unless and until such
Lender shall have received one or more payments from either the Borrower or
one or more Eligible Assignees in an aggregate amount at least equal to the
aggregate outstanding principal amount of the Advances owing to such Lender,
together with accrued interest thereon to the date of payment of such
principal amount and all other amounts payable to such Lender under this
Agreement, and (vi) unless such assignment is demanded by the Borrower, the
parties to each such assignment shall execute and deliver to the Agent, for
its acceptance and recording in the Register, an Assignment and Acceptance,
together with any
Revolving Credit Note subject to such assignment and a processing and
recordation fee of $3,500. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under this Agreement or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee
will, independently and without reliance upon the Agent, such assigning Lender
or any other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes
the Agent to take such action as agent on its behalf and to exercise such
powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Revolving Credit Note or Notes subject to such assignment,
the Agent shall, if such Assignment and Acceptance has been completed and is
in substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Agent in exchange for the surrendered Revolving
Credit Note a new Note to the order of such Eligible Assignee in an amount
equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Commitment hereunder, a
new Revolving Credit Note to the order of the assigning Lender in an amount
equal to the Commitment retained by it hereunder. Such new Revolving Credit
Note or Notes shall be in an aggregate principal
amount equal to the aggregate principal amount of such surrendered Revolving
Credit Note or Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit A-1
hereto.
(d) The Agent shall maintain at its address referred to in Section
8.02 a copy of each Assumption Agreement and each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the
names and addresses of the Lenders and the Commitment of, and principal amount
of the Advances owing to, each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for
all purposes of this Agreement. The Register shall be available for inspection
by the Borrower or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or
other entities (other than the Borrower or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to
it and the Note or Notes held by it) with the consent of the Borrower (which
consent shall not be unreasonably withheld or delayed); provided, however,
that (i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, (iii) such Lender shall remain the
holder of any such Note for all purposes of this Agreement, (iv) the Borrower,
the Agent and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement and (v) no participant under any such participation shall have
any right to approve any amendment or waiver of any provision of this
Agreement or any Note, or any consent to any departure by the Borrower
therefrom, except to the extent that such amendment, waiver or consent would
reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 8.08. Confidentiality. Neither the Agent nor any Lender
shall disclose any Confidential Information to any other Person without the
consent of the Borrower, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, accountants, auditors,
counsel, agents and advisors and, as contemplated by Section 8.07(f), to
actual or prospective assignees and participants, and then only on a
confidential basis, (b) as required by any law, rule or regulation or judicial
process, (c) to any rating agency when required by it, provided that, prior to
any such disclosure, such rating agency shall undertake to preserve the
confidentiality of any Confidential Information relating to the Borrower
received by it from such Lender and (d) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking.
Notwithstanding anything herein to the contrary, each Loan Party, the Agent,
each Lender and Citigroup Global Markets Inc. (and each employee,
representative or other agent of each of the foregoing parties) may disclose
to any and all Persons, without limitation of any kind, the U.S. tax treatment
and tax structure of the transactions contemplated hereby and all materials of
any kind (including opinions or other tax analyses) that are provided to any
of the foregoing parties relating to such U.S. tax treatment and tax
structure, except that the tax treatment and tax structure shall not include
the identity of any existing or future party (or any Affiliate of such party)
to this Agreement.
SECTION 8.09. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of any New York State court or federal court
of the United States of America sitting in New York City, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or the Notes, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement shall affect
any right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or the
Notes in any New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in
any such court.
SECTION 8.12. Waiver of Jury Trial. Each of the Borrower, the Agent
and the Lenders hereby irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
SECTION 8.13. Amendments to the Subsidiary Guaranty. The Agent shall
not consent to any amendment or waiver of any provision of the Subsidiary
Guaranty, nor consent to any departure by the Newspaper Subsidiary therefrom,
without the prior consent of the Required Lenders, and then such consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that, without the prior consent of all the
Lenders, the Agent shall not consent to any amendment or waiver of the
provisions of Section 1 of the Subsidiary Guaranty which would reduce or limit
the scope of the obligations under or in respect of the Credit Agreement which
are being guaranteed by the Newspaper Subsidiary under the Subsidiary
Guaranty. This Section 8.13 may not be amended unless such amendment is in
writing and is signed by all the Lenders.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE WASHINGTON POST COMPANY
By /s/ Daniel J. Lynch
-----------------------
Title: Treasurer
CITIBANK, N.A.
as Agent
By /s/ Julio Ojea Quintana
-----------------------
Title: Director
Initial Lenders
Commitment
$60,000,000 CITIBANK, N.A.
By /s/ Julio Ojea Quintana
----------------------------
Title: Director
$55,000,000 WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ Barbara K. Angel
----------------------------
Title: Senior Vice President
$45,000,000 SUNTRUST BANK
By /s/ Kip Hurd
----------------------------
Title: Vice President
$30,000,000 BANK ONE, NA
By /s/Matthew J. Reilly
----------------------------
Title: Director
$30,000,000 JPMORGAN CHASE BANK
By /s/ Peter J. D'Agostino
----------------------------
Title: Vice President/Team Leader
$20,000,000 THE BANK OF NEW YORK
By /s/ John C. Lambert
----------------------------
Title: Senior Vice President
$10,000,000 RIGGS BANK N.A.
By /s/ Douglas H. Klamfoth
----------------------------
Title: Vice President
$250,000,000 Total of the Commitments
SCHEDULE I
The Washington Post Company
364-Day Credit Agreement
APPLICABLE LENDING OFFICES
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
Bank One, NA One Bank One Plaza OneBank One Plaza
Suite IL1-0636 Suite IL1-0636
Chicago, IL 60670 Chicago, IL 60670
Attn: Ronald J. Cromey Attn: Ronald J. Cromey
Tel: (312) 732-7494 Tel: (312) 732-7494
Fax: (312) 732-4849 Fax:(312) 732-4849
The Bank of New York One Wall Street One Wall Street
New York, NY 10286 New York, NY 10286
Citibank, N.A. Two Penns Way Two Penns Way
New Castle, DE 19720 New Castle, DE 19720
Attn: Bank Loan Syndications Attn: Bank Loan Syndications
Tel: (302) 894-6054 Tel: (302) 894-6054
Fax: (212) 994-0847 Fax: (212) 994-0847
JPMorgan Chase Bank 4 Metrotech Center, 22nd Floor 4 Metrotech Center, 22nd Floor
Brooklyn, NY 11245 Brooklyn, NY 11245
Attn: Charles L. Swarns, Jr. Attn: Charles L. Swarns, Jr.
Tel: (718) 242-3792 Tel: (718) 242-3792
Fax: (718) 242-3846 Fax: (718) 242-3846
Riggs Bank N.A. 5700 Rivertech Center 5700 Rivertech Center
Riverdale, MD 20727 Riverdale, MD 20727
Attn: Katie Alston Attn: Katie Alston
T: 301 887-8966 T: 301 887-8966
F: 301 887-8010 F: 301 887-8010
SunTrust Bank 1445 New York Avenue, NW 1445 New York Avenue, NW
Washington, DC 20005 Washington, DC 20005
Attn: Tom Palmer Attn: Tom Palmer
T: 804 782-5833 T: 804 782-5833
F: 202 879-6137 F: 202 879-6137
Wachovia Bank, National 1753 Pinnacle Drive 1753 Pinnacle Drive
Association 3rd Floor VA 1993 3rd Floor VA 1993
McLean, VA 22102 McLean, VA 22102
Attn: Barbara Angel Attn: Barbara Angel
Tel: (703) 760-6369 Tel: (703) 760-6369
Fax: (703) 760-6172 Fax: (703) 760-6172
SCHEDULE 5.02(a)
EXISTING LIENS
[None]
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated: _____________,
200_
FOR VALUE RECEIVED, the undersigned, THE WASHINGTON POST COMPANY, a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office on the later of the Termination Date and the date designated
pursuant to Section 2.06 of the Credit Agreement (each as defined in the
Credit Agreement referred to below) the principal sum of U.S.$[amount of the
Lender's Commitment in figures] or, if less, the aggregate principal amount of
the Revolving Credit Advances made by the Lender to the Borrower pursuant to
the 364-Day Credit Agreement dated as of August 13, 2003 among the Borrower,
the Lender and certain other lenders parties thereto, Citibank, N.A., as Agent
for the Lender and such other lenders (as amended or modified from time to
time, the "Credit Agreement"; the terms defined therein being used herein as
therein defined), outstanding on such date.
The Borrower promises to pay interest on the unpaid principal amount
of each Revolving Credit Advance from the date of such Revolving Credit
Advance until such principal amount is paid in full, at such interest rates,
and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Agent, at 388 Greenwich Street,
New York, New York 10013, in same day funds. Each Revolving Credit Advance
owing to the Lender by the Borrower pursuant to the Credit Agreement, and all
payments made on account of principal thereof, shall be recorded by the Lender
and, prior to any transfer hereof, endorsed on the grid attached hereto which
is part of this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes referred
to in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, (i) provides for the making of Revolving Credit
Advances by the Lender to the Borrower from time to time in an aggregate
amount not to exceed at any time outstanding the U.S. dollar amount first
above mentioned, the indebtedness of the Borrower resulting from each such
Revolving Credit Advance being evidenced by this Promissory Note, and (ii)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and conditions therein
specified.
THE WASHINGTON POST COMPANY
By
----------------------------
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of Unpaid
Amount of Principal Paid Principal
Date Advance or Prepaid Balance Notation Made By
- --------------------------- ------------------------ ------------------------ ------------------------- ------------------------
- --------------------------- ------------------------ ------------------------ ------------------------- ------------------------
- --------------------------- ------------------------ ------------------------ ------------------------- ------------------------
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated: ______________,
200_
FOR VALUE RECEIVED, the undersigned, THE WASHINGTON POST COMPANY, a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office (as defined in the 364-Day Credit Agreement dated as of August
13, 2003 among the Borrower, the Lender and certain other lenders parties
thereto, Citibank, N.A., as Agent for the Lender and such other lenders (as
amended or modified from time to time, the "Credit Agreement"; the terms
defined therein being used herein as therein defined)), on _______________,
200_, the principal amount of U.S.$______________.
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at
the interest rate and payable on the interest payment date or dates provided
below:
[Interest Rate: _____% per annum (calculated on the basis of a year
of _____ days for the actual number of days elapsed).]
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A. for the account of the Lender at
the office of Citibank, N.A., at 388 Greenwich Street, New York, New York
10013 in same day funds.
This Promissory Note is one of the Competitive Bid Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice
of any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
THE WASHINGTON POST COMPANY
By
----------------------
Title
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Penns Way
New Castle, Delaware 19720 [Date]
Attention: Cristian Garcia
Ladies and Gentlemen:
The undersigned, The Washington Post Company, refers to the
364-Day Credit Agreement, dated as of August 13, 2003 (as amended or modified
from time to time, the "Credit Agreement", the terms defined therein being
used herein as therein defined), among the undersigned, certain Lenders
parties thereto, Citibank, N.A., as Agent for said Lenders, and hereby gives
you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that
the undersigned hereby requests a Revolving Credit Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Revolving Credit Borrowing (the "Proposed Revolving Credit Borrowing") as
required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing is
_______________, 200_.
(ii) The Type of Advances comprising the Proposed Revolving Credit
Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit Borrowing is
$---------------.
(iv) [The initial Interest Period for each Eurodollar Rate Advance made as
part of the Proposed Revolving Credit Borrowing is _____ month[s].]
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the
Proposed Revolving Credit Borrowing:
(A) the representations and warranties contained in Section 4.01 of the
Credit Agreement are correct in all material respects, before and
after giving effect to the Proposed Revolving Credit Borrowing and to
the application of the proceeds therefrom, as though made on and as
of such date, except to the extent they expressly relate to an
earlier date; and
(B) no event has occurred and is continuing, or would result from such
Proposed Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
Very truly yours,
THE WASHINGTON POST COMPANY
By
--------------------------
Title:
2
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Penns Way
New Castle, Delaware 19720 [Date]
Attention: Cristian Garcia
Ladies and Gentlemen:
The undersigned, The Washington Post Company, refers to the 364-Day
Credit Agreement, dated as of August 13, 2003 (as amended or modified from
time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined), among the undersigned, certain Lenders parties
thereto, Citibank, N.A., as Agent for said Lenders, and hereby gives you
notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement that the
undersigned hereby requests a Competitive Bid Borrowing under the Credit
Agreement, and in that connection sets forth the terms on which such
Competitive Bid Borrowing (the "Proposed Competitive Bid Borrowing") is
requested to be made:
(A) Date of Competitive Bid Borrowing _____________________
(B) Amount of Competitive Bid Borrowing _____________________
(C) [Maturity Date] [Interest Period] _____________________
(D) Interest Rate Basis _____________________
(E) Interest Payment Date(s) _____________________
(F) ________________________ _____________________
(G) ________________________ _____________________
(H) ________________________ _____________________
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(a) the representations and warranties contained in Section 4.01 of
the Credit Agreement are correct in all material respects, before and
after giving effect to the Proposed Competitive Bid Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date, except to the extent they expressly relate to an earlier date;
(b) no event has occurred and is continuing, or would result from
the Proposed Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default; and
(c) the aggregate amount of the Proposed Competitive Bid Borrowing
and all other Borrowings to be made on the same day under the Credit
Agreement is within the aggregate amount of the Unused Commitments of the
Lenders.
The undersigned hereby confirms that the Proposed Competitive Bid
Borrowing is to be made available to it in accordance with Section 2.03(a)(v)
of the Credit Agreement.
Very truly yours,
THE WASHINGTON POST COMPANY
By
--------------------------
Title:
2
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Credit Agreement dated as of August
13, 2003 (as amended or modified from time to time, the "Credit Agreement")
among The Washington Post Company, a Delaware corporation (the "Borrower"),
the Lenders (as defined in the Credit Agreement), Citibank, N.A., as agent for
the Lenders (the "Agent"). Terms defined in the Credit Agreement are used
herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under the Credit Agreement as of the
date hereof (other than in respect of Competitive Bid Advances and Competitive
Bid Notes) equal to the percentage interest specified on Schedule 1 hereto of
all outstanding rights and obligations under the Credit Agreement (other than
in respect of Competitive Bid Advances and Competitive Bid Notes). After
giving effect to such sale and assignment, the Assignee's Commitment and the
amount of the Revolving Credit Advances owing to the Assignee will be as set
forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other instrument or
document furnished pursuant thereto; (iii) makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under the Credit Agreement or any other instrument or document
furnished pursuant thereto; and (iv) attaches the Revolving Credit Note held
by the Assignor and requests that the Agent exchange such Revolving Credit
Note for a new Revolving Credit Note payable to the order of the Assignee in
an amount equal to the Commitment assumed by the Assignee pursuant hereto or
new Revolving Credit Notes payable to the order of the Assignee in an amount
equal to the Commitment assumed by the Assignee pursuant hereto and the
Assignor in an amount equal to the Commitment retained by the Assignor under
the Credit Agreement, respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers and discretion under the Credit
Agreement as are delegated to the Agent by the terms thereof, together with
such powers and discretion as are reasonably incidental thereto; (v) agrees
that it will perform in accordance with their terms all of the obligations
that by the terms of the Credit Agreement are required to be performed by it
as a Lender; and (vi) attaches any U.S. Internal Revenue Service forms
required under Section 2.14 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after
the Effective Date, the Agent shall make all payments under the Credit
Agreement and the Revolving Credit Notes in respect of the interest assigned
hereby (including, without limitation, all payments of principal, interest and
facility fees with respect thereto) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments under the Credit Agreement
and the Revolving Credit Notes for periods prior to the Effective Date
directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart
of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
2
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: -----%
Assignee's Commitment: $----------
Aggregate outstanding principal amount of Revolving
Credit Advances assigned: $----------
Principal amount of Revolving Credit Note payable to Assignee: $----------
Principal amount of Revolving Credit Note payable to Assignor: $----------
Effective Date:* _______________, 200_
[NAME OF ASSIGNOR], as Assignor
By
-------------------------------
Title:
Dated: _______________, 200__
[NAME OF ASSIGNEE], as Assignee
By
-------------------------------
Title:
Dated: _______________, 200__
- --------------------
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
3
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted and Approved this
__________ day of _______________, 200__
CITIBANK, N.A., as Agent
By
--------------------------------------
Title:
Approved this __________ day
of _______________, 200__
THE WASHINGTON POST COMPANY
By
--------------------------------------
Title:
4
EXHIBIT D - FORM OF
ASSUMPTION AGREEMENT
Dated:__________
The Washington Post Company
1150 15th Street, N.W.
Washington, D.C. 20071
Citibank, N.A., as Agent
Two Penns Way
New Castle, Delaware 19720
Attention: Cristian Garcia
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement dated as of August
13, 2003 among The Washington Post Company (the "Borrower"), the Lenders
parties thereto, Citibank, N.A., as Agent (the "Credit Agreement"; terms
defined therein being used herein as therein defined), for such Lenders.
The undersigned (the "Assuming Lender") proposes to become an
Assuming Lender pursuant to Section [2.05(b)] [2.17] of the Credit Agreement
and, in that connection, hereby agrees that it shall become a Lender for
purposes of the Credit Agreement on [applicable Increase Date/Extension Date]
and that its Commitment shall as of such date be $__________.
The undersigned (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01(e) thereof, the most recent financial statements referred to
in Section 5.01(i) thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assumption Agreement; (ii) agrees that it will, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement;
(iii) appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement as are delegated
to the Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (iv) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement are
required to be performed by it as a Lender; (v) confirms that it is an
Eligible Assignee; (vi) specifies as its Lending Office (and address for
notices) the offices set forth beneath its name on the signature pages hereof;
and (vii) attaches the forms prescribed by the Internal Revenue Service of the
United States required under Section 2.14 of the Credit Agreement.
The Assuming Lender requests that the Borrower deliver to the Agent
(to be promptly delivered to the Assuming Lender) a Revolving Credit Note
payable to the order of the Assuming Lender, dated as of the [applicable
Increase Date/Extension Date] and substantially in the form of Exhibit A-1 to
the Credit Agreement.
The effective date for this Assumption Agreement shall be
[applicable Increase Date/Extension Date]. Upon delivery of this Assumption
Agreement to the Borrower and the Agent, and satisfaction of all conditions
imposed under Section 2.05(b) as of [date specified above], the undersigned
shall be a party to the Credit Agreement and have the rights and obligations
of a Lender thereunder. As of [date specified above], the Agent shall make all
payments under the Credit Agreement in respect of the interest assumed hereby
(including, without limitation, all payments of principal, interest and
commitment fees) to the Assuming Lender.
This Assumption Agreement may be executed in counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. Delivery of an executed
counterpart by telecopier shall be effective as delivery of a manually
executed counterpart of this Assumption Agreement.
This Assumption Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
Very truly yours,
[NAME OF ASSUMING LENDER]
By
-------------------------
Name:
Title:
Domestic Lending Office
(and address for
notices):
[Address]
Eurodollar Lending Office:
[Address]
Acknowledged and Agreed to:
THE WASHINGTON POST COMPANY
By
---------------------------
Name:
Title
2
EXHIBIT E-1 - FORM OF
OPINION OF COUNSEL
FOR THE BORROWER
[Date]
To each of the Lenders parties
to the Credit Agreement dated
as of August 13, 2003 among
The Washington Post Company,
said Lenders, Citibank, N.A., as
Agent for said Lenders
The Washington Post Company
---------------------------
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(c)(iv) of
the 364-Day Credit Agreement, dated as of August 13, 2003 (the "Credit
Agreement"), among The Washington Post Company (the "Borrower"), the Lenders
parties thereto, Citibank, N.A., as Agent for said Lenders. Terms defined in
the Credit Agreement are used herein as therein defined.
I am the General Counsel of the Borrower and as such I am familiar
with the Credit Agreement and the corporate proceedings taken by the Borrower
to authorize the execution and delivery of the Credit Agreement.
For purposes of this opinion, I have examined:
(1) The Credit Agreement.
(2) The documents furnished by the Borrower pursuant to Section
3.01(c) of the Credit Agreement.
(3) The Certificate of Incorporation of the Borrower and all
amendments thereto (the "Charter").
(4) The by-laws of the Borrower and all amendments thereto (the
"By-laws").
(5) A certificate of the Secretary of State of Delaware, dated
__________, 2003, attesting to the continued corporate existence and good
standing of the Borrower in that State.
In addition, I have examined the originals, or copies certified to
my satisfaction, of such other corporate records of the Borrower, certificates
of public officials and of officers of the Borrower, and agreements,
instruments and other documents, as I have deemed necessary as a basis for the
opinions expressed below. As to questions of fact material to such opinions, I
have, when relevant facts were not independently established by me, relied
upon certificates of
the Borrower or its officers or of public officials. I have assumed the due
execution and delivery, pursuant to due authorization, of the Credit Agreement
by the Initial Lenders and the Agent.
My opinions expressed below are limited to the law of the State of
New York, the General Corporation Law of the State of Delaware and the Federal
law of the United States of America.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the following opinion:
1. The Borrower is a corporation validly existing and in good
standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes, and the consummation of the transactions
contemplated thereby, are within the Borrower's corporate powers, and
have been duly authorized by all necessary corporate action, and do not
contravene (i) the Charter or the By-laws or (ii) any law, rule or
regulation applicable to the Borrower (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System) or
(iii) to the best of my knowledge after appropriate inquiry, (x) any
contractual restriction or (y) any legal restriction contained in orders,
writs, judgments, awards, injunctions or decrees applicable to the
Borrower or its assets, in each case that affects or purports to affect
the Borrower's right to borrow money or the Borrower's obligations under
the Credit Agreement or Notes. The Credit Agreement and the Notes
delivered on the date hereof have been duly executed and delivered on
behalf of the Borrower.
3. No authorization, approval or other action by, and no notice to
or filing with, any United States Federal, New York or, to the extent
required under the General Corporation Law of the State of Delaware,
Delaware governmental authority or regulatory body is required for the
due execution, delivery and performance by the Borrower of the Credit
Agreement and the Notes.
4. The Credit Agreement is, and upon the consummation of any
Borrowings, the Notes will be, legal, valid and binding obligations of
the Borrower enforceable against the Borrower in accordance with their
respective terms.
5. To the best of my knowledge after appropriate inquiry, there are
no pending or overtly threatened actions or proceedings against the
Borrower or any of its Subsidiaries before any court, governmental agency
or arbitrator that purport to affect the legality, validity, binding
effect or enforceability of the Credit Agreement or any of the Notes or
the consummation of the transactions contemplated thereby or that are
likely to have a materially adverse effect upon the financial condition
or operations of the Borrower and its Subsidiaries taken as a whole.
The opinions set forth above are subject to the following
qualifications:
2
(a) My opinion in paragraph 4 above as to enforceability is subject
to the effect of any applicable bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar law affecting creditors' rights
generally.
(b) My opinion in paragraph 4 above as to enforceability is subject
to the effect of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at
law).
(c) Insofar as provisions contained in the Credit Agreement provide
for indemnification, the enforceability thereof may be limited by public
policy considerations.
(d) I express no opinion as to (i) Section 2.15 of the Credit
Agreement insofar as it provides that any Lender purchasing a
participation from another Lender pursuant thereto may exercise set-off
of similar rights with respect to such participation and (ii) the effect
of the law of any jurisdiction other than the State of New York wherein
any Lender may be located or wherein enforcement of the Credit Agreement
or the Notes may be sought that limits the rates of interest legally
chargeable or collectible.
Very truly yours,
3
EXHIBIT E-2 - FORM OF
OPINION OF COUNSEL
FOR THE NEW BORROWER
[Date]
To each of the Lenders parties
to the Credit Agreement dated
as of August 13, 2003 among
The Washington Post Company,
presently known as WP Company LLC,
said Lenders, Citibank, N.A., as
Agent for said Lenders
The Washington Post Company (formerly known as TWPC, Inc.)
----------------------------------------------------------
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 5.01(j)(v) of
the 364-Day Credit Agreement, dated as of August 13, 2003 (the "Credit
Agreement"), among The Washington Post Company, presently known as WP Company
LLC (the "Initial Borrower"), the Lenders parties thereto, Citibank, N.A., as
Agent for said Lenders. Terms defined in the Credit Agreement are used herein
as therein defined.
I am the General Counsel of the New Borrower and as such I am
familiar with the Credit Agreement and the corporate proceedings taken by the
New Borrower to authorize the assumption by the New Borrower of the rights and
obligations of the Initial Borrower under the Credit Agreement.
For purposes of this opinion, I have examined:
(1) The Credit Agreement.
(2) The documents furnished by the New Borrower pursuant to Section
5.01(j) of the Credit Agreement, including the New Borrower Assignment.
(3) The Certificate of Incorporation of the New Borrower and all
amendments thereto (the "Charter").
(4) The by-laws of the New Borrower and all amendments thereto (the
"By-laws").
(5) A certificate of the Secretary of State of Delaware, dated
________ __, 2003, attesting to the continued corporate existence and
good standing of the New Borrower in that State.
In addition, I have examined the originals, or copies certified to
my satisfaction, of such other corporate records of the New Borrower,
certificates of public officials and of officers of the New Borrower, and
agreements, instruments and other documents, as I have
deemed necessary as a basis for the opinions expressed below. As to questions
of fact material to such opinions, I have, when relevant facts were not
independently established by me, relied upon certificates of the New Borrower
or its officers or of public officials. I have assumed the due execution and
delivery, pursuant to due authorization, of the Credit Agreement by the
Initial Lenders and the Agent.
My opinions expressed below are limited to the law of the State of
New York, the General Corporation Law of the State of Delaware and the Federal
law of the United States of America.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the following opinion:
1. The New Borrower is a corporation validly existing and in good
standing under the laws of the State of Delaware.
2. The execution and delivery by the New Borrower of the New
Borrower Assignment, and the performance by the New Borrower of its
obligations as the "Borrower" under the Credit Agreement and the Notes,
and the consummation of the transactions contemplated thereby, are within
the New Borrower's corporate powers, and have been duly authorized by all
necessary corporate action, and do not contravene (i) the Charter or the
By-laws or (ii) any law, rule or regulation applicable to the New
Borrower (including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System) or (iii) to the best of my
knowledge after appropriate inquiry, (x) any contractual restriction or
(y) any legal restriction contained in orders, writs, judgments, awards,
injunctions or decrees applicable to the New Borrower or its assets, in
each case that affects or purports to affect the New Borrower's right to
borrow money or the New Borrower's obligations as the "Borrower" under
the Credit Agreement or Notes. The New Borrower Assignment delivered on
the date hereof has been duly executed and delivered on behalf of the New
Borrower.
3. No authorization, approval or other action by, and no notice to
or filing with, any United States Federal, New York or, to the extent
required under the General Corporation Law of the State of Delaware,
Delaware governmental authority or regulatory body is required for the
due execution, delivery and performance by the New Borrower of the New
Borrower Assignment and the performance by the New Borrower of the Credit
Agreement and the Notes.
4. After the execution and delivery of the New Borrower Assignment,
the Credit Agreement is, and upon the consummation of any Borrowings, the
Notes will be, legal, valid and binding obligations of the New Borrower
enforceable against the New Borrower in accordance with their respective
terms.
5. To the best of my knowledge after appropriate inquiry, there are
no pending or overtly threatened actions or proceedings against the New
Borrower or any of its Subsidiaries before any court, governmental agency
or arbitrator that purport to affect the legality, validity, binding
effect or enforceability of the New Borrower Assignment, the
2
Credit Agreement or any of the Notes or the consummation of the transactions
contemplated thereby or that are likely to have a materially adverse effect
upon the financial condition or operations of the New Borrower and its
Subsidiaries taken as a whole.
The opinions set forth above are subject to the following
qualifications:
(a) My opinion in paragraph 4 above as to enforceability is subject
to the effect of any applicable bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar law affecting creditors' rights
generally.
(b) My opinion in paragraph 4 above as to enforceability is subject
to the effect of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at
law).
(c) Insofar as provisions contained in the Credit Agreement provide
for indemnification, the enforceability thereof may be limited by public
policy considerations.
(d) I express no opinion as to the effect of the law of any
jurisdiction other than the State of New York wherein any Lender may be
located or wherein enforcement of the Credit Agreement or the Notes may
be sought that limits the rates of interest legally chargeable or
collectible.
Very truly yours,
3
EXHIBIT E-3 - FORM OF
OPINION OF COUNSEL
FOR THE NEWSPAPER SUBSIDIARY
[Date]
To each of the Lenders parties
to the Credit Agreement dated
as of August 13, 2003 among
The Washington Post Company,
presently known as WP Company, LLC,
said Lenders, Citibank, N.A.,
as Agent for said Lenders
WP Company LLC (formerly known as The Washington Post Company)
- --------------------------------------------------------------
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 5.01(j)(v) of
the 364-Day Credit Agreement, dated as of August 13, 2003 (the "Credit
Agreement"), among The Washington Post Company (the "Initial Borrower"),
presently known as WP Company LLC, the Lenders parties thereto, Citibank,
N.A., as Agent for said Lenders. Terms defined in the Credit Agreement are
used herein as therein defined.
I am the General Counsel of The Washington Post Company (formerly
known and TWPC, Inc.), the sole stockholder of the Newspaper Subsidiary, and
as such I am familiar with the Credit Agreement and the proceedings taken by
the Newspaper Subsidiary to authorize the execution and delivery of the
Subsidiary Guaranty.
For purposes of this opinion, I have examined:
(1) The Credit Agreement.
(2) The documents furnished by the Newspaper Subsidiary pursuant to
Section 5.01(j) of the Credit Agreement, including the Subsidiary
Guaranty.
(3) The Certificate of Formation and Certificate of Conversion of
the Newspaper Subsidiary and all amendments thereto (the "Certificates").
(4) The limited liability company agreement of the Newspaper
Subsidiary and all amendments thereto (the "LLC Agreement").
(5) A certificate of the Secretary of State of Delaware, dated
________ __, 2003, attesting to the continued existence and good standing
of the Newspaper Subsidiary in that State.
In addition, I have examined the originals, or copies certified to
my satisfaction, of such other records of the Newspaper Subsidiary,
certificates of public officials and of officers
of the Newspaper Subsidiary, and agreements, instruments and other documents,
as I have deemed necessary as a basis for the opinions expressed below. As to
questions of fact material to such opinions, I have, when relevant facts were
not independently established by me, relied upon certificates of the Newspaper
Subsidiary or its officers or of public officials. I have assumed the due
execution and delivery, pursuant to due authorization, of the Credit Agreement
by the Initial Lenders and the Agent.
My opinions expressed below are limited to the law of the State of
New York, the Limited Liability Company Act of the State of Delaware and the
Federal law of the United States of America.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the following opinion:
1. The Newspaper Subsidiary is a limited liability company validly
existing and in good standing under the laws of the State of
Delaware.
2. The execution, delivery and performance by the Newspaper
Subsidiary of the Subsidiary Guaranty are within the Newspaper
Subsidiary's powers, and have been duly authorized by all necessary
action, and do not contravene (i) the Certificates or LLC Agreement
or (ii) any law, rule or regulation applicable to the Newspaper
Subsidiary (including, without limitation, Regulation X of the Board
of Governors of the Federal Reserve System) or (iii) to the best of
my knowledge after appropriate inquiry, (x) any contractual
restriction or (y) any legal restriction contained in orders, writs,
judgments, awards, injunctions or decrees applicable to the
Newspaper Subsidiary or its assets, in each case that affects or
purports to affect the Newspaper Subsidiary's obligations under the
Subsidiary Guaranty. The Subsidiary Guaranty delivered on the date
hereof has been duly executed and delivered on behalf of the
Newspaper Subsidiary.
3. No authorization, approval or other action by, and no notice to
or filing with, any United States Federal, New York or, to the
extent required under the Limited Liability Company Act of the State
of Delaware, Delaware governmental authority or regulatory body is
required for the due execution, delivery and performance by the
Borrower of the Subsidiary Guaranty.
4. The Subsidiary Guaranty is a legal, valid and binding obligation
of the Newspaper Subsidiary enforceable against the Newspaper
Subsidiary in accordance with its terms.
5. To the best of my knowledge after appropriate inquiry, there are
no pending or overtly threatened actions or proceedings against the
Newspaper Subsidiary before any court, governmental agency or
arbitrator that purport to affect the legality, validity, binding
effect or enforceability of the Subsidiary Guaranty.
The opinions set forth above are subject to the following
qualifications:
(a) My opinion in paragraph 4 above as to enforceability is subject
to the effect of any applicable bankruptcy, insolvency (including,
without limitation, all laws
2
relating to fraudulent transfers), reorganization, moratorium or similar
law affecting creditors' rights generally.
(b) My opinion in paragraph 4 above as to enforceability is subject
to the effect of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at
law).
(c) Insofar as provisions contained in the Subsidiary Guaranty
provide for indemnification, the enforceability thereof may be limited by
public policy considerations.
(d) I express no opinion as to the effect of the law of any
jurisdiction other than the State of New York wherein any Lender may be
located or wherein enforcement of the Subsidiary Guaranty may be sought
that limits the rates of interest legally chargeable or collectible.
Very truly yours,
3
EXHIBIT G - FORM OF
NEW BORROWER ASSIGNMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT (this
"Agreement"), dated as of /o/, 2003, between WP
COMPANY LLC, a Delaware limited liability company
(the "Newspaper Subsidiary"), and THE WASHINGTON
POST COMPANY (formerly known as TWPC, Inc.), a
Delaware corporation (the "New Borrower").
WHEREAS, reference is made to the 364-Day Credit Agreement (the
"Credit Agreement") dated as of August 13, 2003, among the Newspaper
Subsidiary (then known as The Washington Post Company), as Borrower; Bank One,
NA, The Bank of New York, Citibank, N.A., JPMorgan Chase Bank, Riggs Bank NA,
SunTrust Bank and Wachovia Bank, National Association;
WHEREAS, as contemplated by Section 5.01(j) of the Credit Agreement,
the Newspaper Subsidiary wishes to assign to the New Borrower, and the New
Borrower wishes to assume from the Newspaper Subsidiary, all of the Newspaper
Subsidiary's rights and obligations under the Credit Agreement;
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the parties hereto have caused to be delivered to the Agent the
documents referred to in Section 5.01(j) of the Credit Agreement.
NOW, THEREFORE, for consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and as contemplated by the Credit Agreement, the parties agree
as follows:
SECTION 1. Defined Terms. All capitalized terms used and not
otherwise defined herein shall have the meanings ascribed to them in the
Credit Agreement.
SECTION 2. Assignment and Assumption. The Newspaper Subsidiary
hereby assigns to the New Borrower, and the New Borrower hereby assumes from
the Newspaper Subsidiary, effective as of the date of this Agreement, all of
the Newspaper Subsidiary's right, title and interest in and to, and all of its
duties, obligations and liabilities under, the Credit Agreement. From and
after the date of this Agreement, (i) the Credit Agreement shall be binding on
and inure to the benefit of the New Borrower as if the New Borrower were the
Borrower under the Credit Agreement and (ii) the Newspaper Subsidiary shall be
released from its right, title and interest in and to, and all of its duties,
obligations and liabilities under, the Credit Agreement.
SECTION 3. Performance. The New Borrower hereby agrees to faithfully
perform all of the duties imposed upon the Borrower under the Credit Agreement
and to comply with all of the covenants therein contained.
SECTION 4. Subsidiary Guaranty. Nothing in this Agreement shall be
construed to release the Newspaper Subsidiary from its duties, obligations and
liabilities under the Subsidiary Guaranty.
SECTION 5. Counterparts. This Agreement may be executed in one or
more counterparts by facsimile signature, each of which shall be deemed an
original and all of which shall, taken together, be considered one and the
same agreement.
SECTION 6. New York Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without
regard to its principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
WP COMPANY LLC,
by:
---------------------------
Name:
Title:
THE WASHINGTON POST COMPANY (formerly
known as TWPC, Inc.),
by:
---------------------------
Name:
Title:
2
Exhibit 4.3
CONSENT AND AMENDMENT NO. 1 TO THE
5-YEAR CREDIT AGREEMENT
Dated as of August 13, 2003
CONSENT AND AMENDMENT NO. 1 TO THE 5-YEAR CREDIT AGREEMENT (this
"Amendment") among THE WASHINGTON POST COMPANY, a Delaware corporation (the
"Borrower"), the banks, financial institutions and other institutional lenders
parties to the Credit Agreement referred to below (collectively, the
"Lenders") and CITIBANK, N.A., as agent (the "Agent") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders and the Agent have entered into a
5-Year Credit Agreement dated as of August 14, 2002 (the "Credit Agreement").
Capitalized terms not otherwise defined in this Amendment have the same
meanings as specified in the Credit Agreement.
(2) The Borrower has proposed to undertake an internal restructuring
pursuant to which the Borrower will merge with a wholly owned Subsidiary of a
newly formed corporate parent of the Borrower and transfer its assets and
liabilities, other than the assets and liabilities relating to the Borrower's
newspaper publishing business, to such new corporate parent (the
"Restructuring"). As a part of the Restructuring, the new corporate parent
(the "New Borrower") and the Borrower will enter into an assignment and
assumption agreement whereby the New Borrower will become the "Borrower" under
the Credit Agreement. The Borrower has requested that the Required Lenders (x)
consent to the Restructuring and the assignment and assumption agreement
described above, and (y) agree to amend the Credit Agreement as hereinafter
set forth.
(3) The Required Lenders are, on the terms and conditions stated
below, willing to grant the request of the Borrower and the Borrower and the
Required Lenders have agreed to amend the Credit Agreement as hereinafter set
forth.
SECTION 1. Consent to Restructuring. Effective as of the date hereof
and subject to the satisfaction of the conditions precedent set forth in
Section 3, the Required Lenders hereby consent to the Restructuring and to the
assignment and assumption of the rights and obligations of the Borrower under
the Credit Agreement as described above.
SECTION 2. Amendments to Credit Agreement. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 3, hereby amended as follows:
(a) Section 1.01 is amended by adding in appropriate alphabetical
order the following definitions:
"Borrower" has the meaning specified in the recital or parties to
this Agreement, provided that upon the completion of the Restructuring
and the
satisfaction of the conditions set forth in Section 5.01(j), the Borrower
shall be the New Borrower.
"Loan Document" means this Agreement, the Notes and, after the
Restructuring, the Subsidiary Guaranty and the New Borrower Assignment.
"Loan Party" means the Borrower and, so long as the Subsidiary
Guaranty is in effect, the Subsidiary Guarantor.
"New Borrower" means, upon the completion of the Restructuring, the
new parent holding company that is the corporate parent of the Newspaper
Subsidiary.
"New Borrower Assignment" has the meaning specified in Section
5.01(j).
"Newspaper Subsidiary" has the meaning specified in the definition
of "Restructuring".
"Restructuring" means an internal restructuring of the Borrower
pursuant to which the Borrower merges with a wholly owned Subsidiary of
the New Borrower and transfers its assets and liabilities, other than the
newspaper publishing business, to the New Borrower. Thereafter the
Borrower shall be a wholly owned subsidiary of the New Borrower and shall
be referred to as the "Newspaper Subsidiary".
"Subsidiary Guaranty" has the meaning specified in Section 5.01(j).
(b) The definition of "Significant Subsidiary" in Section 1.01 is
amended by adding to the end thereof the phrase "and shall include, so long as
the Subsidiary Guaranty is in effect, the Newspaper Subsidiary".
(c) Section 3.02(a) is amended by deleting the phrase "contained in
Section 4.01" and substituting therefor the phrase "contained in Section 4.01
and, so long as the Subsidiary Guaranty is in effect, in Section 6 of the
Subsidiary Guaranty".
(d) Section 3.03(a) is amended by deleting the phrase "contained in
Section 4.01" and substituting therefor the phrase "contained in Section 4.01
and, so long as the Subsidiary Guaranty is in effect, in Section 6 of the
Subsidiary Guaranty".
(e) Section 5.01(d) is amended in full to read as follows:
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and so long as the Newspaper Subsidiary is in effect, cause the Newspaper
Subsidiary to preserve and maintain, its corporate or other legal
existence, rights (charter and statutory) and franchises if the loss or
failure to maintain the same could, individually or in the aggregate, be
reasonably likely to have a Material Adverse Effect; provided, however,
that the Borrower and the Subsidiary Guarantor may consummate any merger,
consolidation or other transaction permitted under Section 5.02(b),
including the Restructuring.
(f) Section 5.01 is amended by adding to the end thereof a new
subsection (j) to read as follows:
(j) Restructuring. Deliver to the Agent not later than five (5)
Business Days after the completion of the Restructuring, in sufficient
copies for each Lender:
(i) An assignment and assumption agreement, substantially in
the form of Exhibit G hereto (the "New Borrower Assignment"), duly
executed by the parties thereto.
(ii) Certified copies of the resolutions of the Board of
Directors of (x) the New Borrower approving or ratifying the New
Borrower Assignment and the assumption by the New Borrower of the
obligations of the Borrower under the Credit Agreement and the Notes
and (y) the Newspaper Subsidiary approving or ratifying the
Subsidiary Guaranty.
(iii) A certificate of the Secretary or an Assistant Secretary
of each of the New Borrower and the Newspaper Subsidiary certifying
the names and true signatures of the officers of such Loan Party
authorized to sign each Loan Document to which it is a party and the
other documents to be delivered by it hereunder.
(iv) A guaranty in substantially the form of Exhibit F hereto
(as amended, supplemented or otherwise modified from time to time,
the "Subsidiary Guaranty"), duly executed by the Newspaper
Subsidiary.
(v) Favorable opinions of in-house counsel for each of the New
Borrower and the Newspaper Subsidiary, substantially in the forms of
Exhibits E-2 and E-3 hereto, respectively.
(g) Section 5.02(b) is amended in full to read as follows:
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in
a series of transactions) all or substantially all of its assets (whether
now owned or hereafter acquired) to, any Person, or so long as the
Subsidiary Guaranty is in effect, permit the Newspaper Subsidiary to do
any of the foregoing, provided that the Borrower and the Newspaper
Subsidiary may (i) merge or consolidate with any other Person so long as
the Borrower or the Newspaper Subsidiary, as the case may be, is the
surviving entity and (ii) consummate the Restructuring and provided
further that no Default shall have occurred and be continuing at the time
of such proposed transaction or would result therefrom.
(h) Section 6.01(b) is amended in full to read as follows:
(b) Any representation or warranty made by any Loan Party in any
Loan Document or by any Loan Party (or any of its officers) in connection
with any Loan Document shall prove to have been incorrect in any material
respect when made; or
(i) Section 8.06 is amended by adding to the end thereof a new
proviso to read as follows:
; provided that upon completion of the Restructuring, the Borrower's
assignment to the New Borrower of the Borrower's rights hereunder, and
the New Borrower's assumption thereof, shall not require the prior
written consent of the Lenders, and after such assignment and assumption
is effective (i) this Agreement shall be binding on and inure to the
benefit of the New Borrower and (ii) the Newspaper Subsidiary shall be
released from its rights and obligations under this Agreement and the
other Loan Documents other than the Subsidiary Guaranty.
(j) Section 8.08 is amended by adding to the end thereof a new
sentence to read as follows:
Notwithstanding anything herein to the contrary, each Loan Party, the
Agent, each Lender and Citigroup Global Markets Inc. (and each employee,
representative or other agent of each of the foregoing parties) may
disclose to any and all Persons, without limitation of any kind, the U.S.
tax treatment and tax structure of the transactions contemplated hereby
and all materials of any kind (including opinions or other tax analyses)
that are provided to any of the foregoing parties relating to such U.S.
tax treatment and tax structure, except that the tax treatment and tax
structure shall not include the identity of any existing or future party
(or any Affiliate of such party) to this Agreement.
(k) A new Section 8.13 is added to read as follows:
SECTION 8.13. Amendments to the Subsidiary Guaranty. The Agent
shall not consent to any amendment or waiver of any provision of the
Subsidiary Guaranty, nor consent to any departure by the Newspaper
Subsidiary therefrom, without the prior consent of the Required
Lenders, and then such consent shall be effective only in the
specific instance and for the specific purpose for which given;
provided, however, that, without the prior consent of all the
Lenders, the Agent shall not consent to any amendment or waiver of
the provisions of Section 1 of the Subsidiary Guaranty which would
reduce or limit the scope of the obligations under or in respect of
the Credit Agreement which are being guaranteed by the Newspaper
Subsidiary under the Subsidiary Guaranty. This Section 8.13 may not
be amended unless such amendment is in writing and is signed by all
the Lenders.
(l) Exhibit E is renamed "Exhibit E-1" and new Exhibits E-2, E-3, F
and G are added in the forms attached as Exhibits E-2, E-3, F and G to
this Amendment.
SECTION 3. Conditions of Effectiveness. This Amendment shall become
effective as of the date first above written when, and only when, on or before
September 5, 2003,
the Agent shall have received counterparts of this Amendment executed by the
Borrower and the Required Lenders or, as to any of the Lenders, advice
satisfactory to the Agent that such Lender has executed this Amendment. The
effectiveness of this Amendment is conditioned upon the accuracy of the
factual matters described herein. This Amendment is subject to the provisions
of Section 8.01 of the Credit Agreement.
SECTION 4. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction indicated in the
recital of parties to this Amendment.
(b) The execution, delivery and performance by the Borrower of this
Amendment and the Credit Agreement, as amended hereby, are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Borrower's charter or
by-laws or (ii) law or any contractual restriction binding on or
affecting the Borrower.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any
other third party is required for the due execution, delivery or
performance by the Borrower of this Amendment or the Credit Agreement, as
amended hereby.
(d) This Amendment has been duly executed and delivered by the
Borrower. This Amendment and the Credit Agreement, as amended hereby, are
legal, valid and binding obligations of the Borrower, enforceable against
the Borrower in accordance with their respective terms.
(e) There is no pending or threatened action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its
Subsidiaries before any court, governmental agency or arbitrator that
purports to affect the legality, validity or enforceability of this
Amendment or the Credit Agreement.
(f) No Default has occurred and is continuing.
SECTION 5. Reference to and Effect on the Credit Agreement and the
Notes. (a) On and after the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of
like import referring to the Credit Agreement, and each reference in the Notes
to "the Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement, as amended by this Amendment.
(b) The Credit Agreement and the Notes, as specifically amended by
this Amendment, are and shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender or the Agent under the Credit Agreement,
nor constitute a waiver of any provision of the Credit Agreement.
SECTION 6. Costs and Expenses. The Borrower agrees to pay on demand
all costs and expenses of the Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder
(including, without limitation, the reasonable fees and expenses of counsel
for the Agent) in accordance with the terms of Section 8.04(a) of the Credit
Agreement.
SECTION 7. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be deemed equivalent to delivery of a manually
executed counterpart of this Amendment.
SECTION 8. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE WASHINGTON POST COMPANY
By /s/ Daniel J. Lynch
------------------------
Title: Treasurer
CITIBANK, N.A.
as Agent and as a Lender
By /s/ Julio Ojea Quintana
------------------------
Title: Director
WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ Barbara K. Angel
--------------------------
Title: Senior Vice President
SUNTRUST BANK
By /s/ Kip Hurd
--------------------------
Title: Vice President
BANK ONE, NA
By /s/Matthew J. Reilly
-------------------------
Title: Director
JPMORGAN CHASE BANK
By /s/ Peter J. D'Agostino
-------------------------
Title: Vice President/Team Leader
THE BANK OF NEW YORK
By /s/ John C. Lambert
--------------------------
Title: Senior Vice President
RIGGS BANK N.A.
By /s/ Douglas H. Klamfoth
--------------------------
Title: Vice President
THE NORTHERN TRUST COMPANY
By /s/ Alfred Armengol
-------------------------
Title: Officer
EXHIBIT E-2 - FORM OF
OPINION OF COUNSEL
FOR THE NEW BORROWER
[Date]
To each of the Lenders parties
to the 5-Year Credit Agreement dated
as of August 14, 2002 among
The Washington Post Company,
presently known as WP Company LLC,
said Lenders, Citibank, N.A., as
Agent for said Lenders
THE WASHINGTON POST COMPANY (FORMERLY KNOWN AS TWPC, INC.)
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 5.01(j)(v) of
the 5-Year Credit Agreement, dated as of August 14, 2002 (as amended to date,
the "Credit Agreement"), among The Washington Post Company, presently known as
WP Company LLC (the "Initial Borrower"), the Lenders parties thereto,
Citibank, N.A., as Agent for said Lenders. Terms defined in the Credit
Agreement are used herein as therein defined.
I am the General Counsel of the New Borrower and as such I am
familiar with the Credit Agreement and the corporate proceedings taken by the
New Borrower to authorize the assumption by the New Borrower of the rights and
obligations of the Initial Borrower under the Credit Agreement.
For purposes of this opinion, I have examined:
(1) The Credit Agreement.
(2) The documents furnished by the New Borrower pursuant to Section
5.01(j) of the Credit Agreement, including the New Borrower
Assignment.
(3) The Certificate of Incorporation of the New Borrower and all
amendments thereto (the "Charter").
(4) The by-laws of the New Borrower and all amendments thereto (the
"By-laws").
(5) A certificate of the Secretary of State of Delaware, dated
________ __, 2003, attesting to the continued corporate existence and
good standing of the New Borrower in that State.
In addition, I have examined the originals, or copies certified to
my satisfaction, of such other corporate records of the New Borrower,
certificates of public officials and of officers of the New Borrower, and
agreements, instruments and other documents, as I have deemed necessary as a
basis for the opinions expressed below. As to questions of fact material to
such opinions, I have, when relevant facts were not independently established
by me, relied upon certificates of the New Borrower or its officers or of
public officials. I have assumed the due execution and delivery, pursuant to
due authorization, of the Credit Agreement by the Initial Lenders and the
Agent.
My opinions expressed below are limited to the law of the State of
New York, the General Corporation Law of the State of Delaware and the Federal
law of the United States of America.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the following opinion:
1. The New Borrower is a corporation validly existing and in good
standing under the laws of the State of Delaware.
2. The execution and delivery by the New Borrower of the New Borrower
Assignment, and the performance by the New Borrower of its
obligations as the "Borrower" under the Credit Agreement and the
Notes, and the consummation of the transactions contemplated thereby,
are within the New Borrower's corporate powers, and have been duly
authorized by all necessary corporate action, and do not contravene
(i) the Charter or the By-laws or (ii) any law, rule or regulation
applicable to the New Borrower (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System)
or (iii) to the best of my knowledge after appropriate inquiry, (x)
any contractual restriction or (y) any legal restriction contained in
orders, writs, judgments, awards, injunctions or decrees applicable
to the New Borrower or its assets, in each case that affects or
purports to affect the New Borrower's right to borrow money or the
New Borrower's obligations as the "Borrower" under the Credit
Agreement or Notes. The New Borrower Assignment delivered on the date
hereof has been duly executed and delivered on behalf of the New
Borrower.
3. No authorization, approval or other action by, and no notice to or
filing with, any United States Federal, New York or, to the extent
required under the General Corporation Law of the State of Delaware,
Delaware governmental authority or regulatory body is required for
the due execution, delivery and performance by the New Borrower of
the New Borrower Assignment and the performance by the New Borrower
of the Credit Agreement and the Notes.
4. After the execution and delivery of the New Borrower Assignment,
the Credit Agreement is, and upon the consummation of any Borrowings,
the Notes will be, legal, valid and binding obligations of the New
Borrower enforceable against the New Borrower in accordance with
their respective terms.
5. To the best of my knowledge after appropriate inquiry, there are
no pending or overtly threatened actions or proceedings against the
New Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that purport to affect the
legality, validity, binding effect or enforceability of the New
Borrower Assignment, the Credit Agreement or any of the Notes or the
consummation of the transactions contemplated thereby or that are
likely to have a materially adverse effect upon the financial
condition or operations of the New Borrower and its Subsidiaries
taken as a whole.
The opinions set forth above are subject to the following qualifications:
(a) My opinion in paragraph 4 above as to enforceability is subject
to the effect of any applicable bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar law affecting creditors' rights
generally.
(b) My opinion in paragraph 4 above as to enforceability is subject
to the effect of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at
law).
(c) Insofar as provisions contained in the Credit Agreement provide
for indemnification, the enforceability thereof may be limited by public
policy considerations.
(d) I express no opinion as to the effect of the law of any
jurisdiction other than the State of New York wherein any Lender may be
located or wherein enforcement of the Credit Agreement or the Notes may
be sought that limits the rates of interest legally chargeable or
collectible.
Very truly yours,
EXHIBIT E-3 - FORM OF
OPINION OF COUNSEL
FOR THE NEWSPAPER SUBSIDIARY
[Date]
To each of the Lenders parties to the 5-Year Credit Agreement dated as of
August 14, 2002 among The Washington Post Company, presently known as WP
Company, LLC, said Lenders, Citibank, N.A., as Agent for said Lenders
WP COMPANY LLC (FORMERLY KNOWN AS THE WASHINGTON POST COMPANY)
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 5.01(j)(v) of
the 5-Year Credit Agreement, dated as of August 14, 2002 (as amended to date,
the "Credit Agreement"), among The Washington Post Company (the "Initial
Borrower"), presently known as WP Company LLC, the Lenders parties thereto,
Citibank, N.A., as Agent for said Lenders. Terms defined in the Credit
Agreement are used herein as therein defined.
I am the General Counsel of The Washington Post Company (formerly
known and TWPC, Inc.), the sole stockholder of the Newspaper Subsidiary, and
as such I am familiar with the Credit Agreement and the proceedings taken by
the Newspaper Subsidiary to authorize the execution and delivery of the
Subsidiary Guaranty.
For purposes of this opinion, I have examined:
(1) The Credit Agreement.
(2) The documents furnished by the Newspaper Subsidiary pursuant to
Section 5.01(j) of the Credit Agreement, including the Subsidiary
Guaranty.
(3) The Certificate of Formation and Certificate of Conversion of the
Newspaper Subsidiary and all amendments thereto (the "Certificates").
(4) The limited liability company agreement of the Newspaper
Subsidiary and all amendments thereto (the "LLC Agreement").
(5) A certificate of the Secretary of State of Delaware, dated
________ __, 2003, attesting to the continued existence and good
standing of the Newspaper Subsidiary in that State.
In addition, I have examined the originals, or copies certified to
my satisfaction, of such other records of the Newspaper Subsidiary,
certificates of public officials and of officers
of the Newspaper Subsidiary, and agreements, instruments and other documents,
as I have deemed necessary as a basis for the opinions expressed below. As to
questions of fact material to such opinions, I have, when relevant facts were
not independently established by me, relied upon certificates of the Newspaper
Subsidiary or its officers or of public officials. I have assumed the due
execution and delivery, pursuant to due authorization, of the Credit Agreement
by the Initial Lenders and the Agent.
My opinions expressed below are limited to the law of the State of
New York, the Limited Liability Company Act of the State of Delaware and the
Federal law of the United States of America.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the following opinion:
1. The Newspaper Subsidiary is a limited liability company validly
existing and in good standing under the laws of the State of
Delaware.
2. The execution, delivery and performance by the Newspaper
Subsidiary of the Subsidiary Guaranty are within the Newspaper
Subsidiary's powers, and have been duly authorized by all necessary
action, and do not contravene (i) the Certificates or LLC Agreement
or (ii) any law, rule or regulation applicable to the Newspaper
Subsidiary (including, without limitation, Regulation X of the Board
of Governors of the Federal Reserve System) or (iii) to the best of
my knowledge after appropriate inquiry, (x) any contractual
restriction or (y) any legal restriction contained in orders, writs,
judgments, awards, injunctions or decrees applicable to the Newspaper
Subsidiary or its assets, in each case that affects or purports to
affect the Newspaper Subsidiary's obligations under the Subsidiary
Guaranty. The Subsidiary Guaranty delivered on the date hereof has
been duly executed and delivered on behalf of the Newspaper
Subsidiary.
3. No authorization, approval or other action by, and no notice to or
filing with, any United States Federal, New York or, to the extent
required under the Limited Liability Company Act of the State of
Delaware, Delaware governmental authority or regulatory body is
required for the due execution, delivery and performance by the
Borrower of the Subsidiary Guaranty.
4. The Subsidiary Guaranty is a legal, valid and binding obligation
of the Newspaper Subsidiary enforceable against the Newspaper
Subsidiary in accordance with its terms.
5. To the best of my knowledge after appropriate inquiry, there are
no pending or overtly threatened actions or proceedings against the
Newspaper Subsidiary before any court, governmental agency or
arbitrator that purport to affect the legality, validity, binding
effect or enforceability of the Subsidiary Guaranty.
The opinions set forth above are subject to the following qualifications:
(a) My opinion in paragraph 4 above as to enforceability is subject
to the effect of any applicable bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar law affecting creditors' rights
generally.
(b) My opinion in paragraph 4 above as to enforceability is subject
to the effect of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at
law).
(c) Insofar as provisions contained in the Subsidiary Guaranty
provide for indemnification, the enforceability thereof may be limited by
public policy considerations.
(d) I express no opinion as to the effect of the law of any
jurisdiction other than the State of New York wherein any Lender may be
located or wherein enforcement of the Subsidiary Guaranty may be sought
that limits the rates of interest legally chargeable or collectible.
Very truly yours,
EXHIBIT G - FORM OF
NEW BORROWER ASSIGNMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT (this
"Agreement"), dated as of /o/, 2003, between WP
COMPANY LLC, a Delaware limited liability company
(the "Newspaper Subsidiary"), and THE WASHINGTON
POST COMPANY (formerly known as TWPC, Inc.), a
Delaware corporation (the "New Borrower").
WHEREAS, reference is made to the 5-Year Credit Agreement (as
amended to date, the "Credit Agreement") dated as of August 14, 2002, among
the Newspaper Subsidiary (then known as The Washington Post Company), as
Borrower; Bank One, NA, The Bank of New York, Citibank, N.A., JPMorgan Chase
Bank, Riggs Bank NA, SunTrust Bank, Wachovia Bank, National Association and
The Northern Trust Company;
WHEREAS, as contemplated by Section 5.01(j) of the Credit Agreement,
the Newspaper Subsidiary wishes to assign to the New Borrower, and the New
Borrower wishes to assume from the Newspaper Subsidiary, all of the Newspaper
Subsidiary's rights and obligations under the Credit Agreement;
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the parties hereto have caused to be delivered to the Agent the
documents referred to in Section 5.01(j) of the Credit Agreement.
NOW, THEREFORE, for consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and as contemplated by the Credit Agreement, the parties agree
as follows:
SECTION 1. Defined Terms. All capitalized terms used and not
otherwise defined herein shall have the meanings ascribed to them in the
Credit Agreement.
SECTION 2. Assignment and Assumption. The Newspaper Subsidiary
hereby assigns to the New Borrower, and the New Borrower hereby assumes from
the Newspaper Subsidiary, effective as of the date of this Agreement, all of
the Newspaper Subsidiary's right, title and interest in and to, and all of its
duties, obligations and liabilities under, the Credit Agreement. From and
after the date of this Agreement, (i) the Credit Agreement shall be binding on
and inure to the benefit of the New Borrower as if the New Borrower were the
Borrower under the Credit Agreement and (ii) the Newspaper Subsidiary shall be
released from its right, title and interest in and to, and all of its duties,
obligations and liabilities under, the Credit Agreement.
SECTION 3. Performance. The New Borrower hereby agrees to faithfully
perform all of the duties imposed upon the Borrower under the Credit Agreement
and to comply with all of the covenants therein contained.
SECTION 4. Subsidiary Guaranty. Nothing in this Agreement shall be
construed to release the Newspaper Subsidiary from its duties, obligations and
liabilities under the Subsidiary Guaranty.
SECTION 5. Counterparts. This Agreement may be executed in one or
more counterparts by facsimile signature, each of which shall be deemed an
original and all of which shall, taken together, be considered one and the
same agreement.
SECTION 6. New York Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without
regard to its principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
WP COMPANY LLC,
by:
--------------------------------------
Name:
Title:
THE WASHINGTON POST COMPANY (formerly known as
TWPC, Inc.),
by:
-------------------------------------
Name:
Title:
Exhibit 99.1
Contact: Rima Calderon For Immediate Release
(202) 334-6617 September 23, 2003
THE WASHINGTON POST COMPANY COMPLETES
CORPORATE RESTRUCTURING
WASHINGTON - The Washington Post Company (NYSE:WPO) announced today that it
has completed an internal corporate restructuring. The principal purpose of
the restructuring was to separate the company's Washington Post newspaper
publishing business into a wholly-owned subsidiary. Prior to this
restructuring, the Washington Post newspaper had been run as an operating
division of the company.
As a result of the restructuring, the shares of the company's Class
A Common Stock, Class B Common Stock, and Series A Preferred Stock were
automatically converted into identical, newly-issued shares of the new holding
company, which has assumed the corporate name of The Washington Post Company.
Each class carries the same voting powers, designations, preferences, rights,
qualifications, restrictions, and limitations as the class from which it was
converted. The share conversion requires no physical exchange of stock
certificates, and the stock certificates formerly representing each class of
the company's stock now represent the equivalent class of stock of the new
holding company. The Class B Common Stock of the holding company continues to
be listed on the New York Stock Exchange under the symbol WPO, in the same
manner as the Class B Common Stock of the company was listed prior to the
Restructuring. The Washington Post newspaper will continue to do business as
"The Washington Post."
In accordance with Delaware merger law, the restructuring did not
require the approval of the company's stockholders.