Annual Report — [x] Reg. S-K Item 405 — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K405 Annual Report on Form 10-K for Period End 9/30/96 49 249K
2: EX-3.(B) Amended Bylaws of the Company Dated 4/22/96 11 58K
3: EX-4.(C) 364 Day Credit Agreement Dated as of Oct. 30, 1996 51 214K
4: EX-4.(D) Five-Year Credit Agreement Dated 10/30/96 53 225K
5: EX-21 Subsidiaries of the Company 1 5K
6: EX-27 Financial Data Schedule 2 9K
EX-4.(D) — Five-Year Credit Agreement Dated 10/30/96
Exhibit Table of Contents
EXHIBIT 4(d)
EXECUTION COPY
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FIVE-YEAR CREDIT AGREEMENT
Dated as of October 30, 1996
Among
THE WALT DISNEY COMPANY
as Borrower
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and
THE FINANCIAL INSTITUTIONS NAMED HEREIN
as Lenders
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and
CITICORP USA, INC.
as Administrative Agent
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and
CREDIT SUISSE
and
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION
as Co-Administrative Agents
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.............................. 1
SECTION 1.02. Computation of Time Periods........................ 11
SECTION 1.03. Accounting Terms................................... 11
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances....................................... 11
SECTION 2.02. Making the Advances................................ 12
SECTION 2.03. Facility Fee....................................... 13
SECTION 2.04. Reduction of the Commitments....................... 13
SECTION 2.05. Repayment of Advances.............................. 13
SECTION 2.06. Interest on Advances............................... 13
SECTION 2.07. Additional Interest on Eurodollar Rate Advances.... 14
SECTION 2.08. Interest Rate Determination........................ 14
SECTION 2.09. Optional Conversion of Advances.................... 15
SECTION 2.10. Prepayments of Advances............................ 16
SECTION 2.11. Increased Costs.................................... 16
SECTION 2.12. Illegality......................................... 17
SECTION 2.13. Payments and Computations.......................... 18
SECTION 2.14. Taxes.............................................. 19
SECTION 2.15. Sharing of Payments, Etc........................... 21
SECTION 2.16. Mandatory Assignment by a Lender; Mitigation....... 21
SECTION 2.17. Evidence of Debt................................... 22
SECTION 2.18. Use of Proceeds.................................... 23
SECTION 2.19. Increase in the Aggregate Commitments.............. 23
SECTION 2.20. Extension of Termination Date...................... 24
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Section 2.01....................................... 26
SECTION 3.02. Conditions Precedent to Each Borrowing............. 27
SECTION 3.03. Determinations Under Section 3.01.................. 28
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower..... 28
SECTION 4.02. Additional Representations and Warranties of the
Borrower as of Each Increase Date and Each
Extension Date.................................... 29
(i)
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants.............................. 30
SECTION 5.02. Negative Covenant.................................. 32
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.................................. 33
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action........................... 34
SECTION 7.02. Administrative Agent's Reliance, Etc............... 35
SECTION 7.03. CUSA and Affiliates................................ 35
SECTION 7.04. Lender Credit Decision............................. 35
SECTION 7.05. Indemnification.................................... 35
SECTION 7.06. Successor Administrative Agent..................... 36
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc.................................... 36
SECTION 8.02. Notices, Etc. ..................................... 37
SECTION 8.03. No Waiver; Remedies................................ 38
SECTION 8.04. Costs and Expenses................................. 38
SECTION 8.05. Right of Set-off................................... 38
SECTION 8.06. Binding Effect..................................... 39
SECTION 8.07. Assignments and Participations..................... 39
SECTION 8.08. Indemnification.................................... 41
SECTION 8.09. Confidentiality.................................... 42
SECTION 8.10. Consent to Jurisdiction and Service of Process..... 42
SECTION 8.11. Governing Law...................................... 43
SECTION 8.12. Execution in Counterparts.......................... 43
SCHEDULE
Schedule I - List of Applicable Lending Offices
EXHIBITS
Exhibit A - Form of Notice of Borrowing
Exhibit B - Form of Assignment and Acceptance
Exhibit C - Form of Opinion of Assistant General Counsel of the Borrower
Exhibit D-1 - Form of Foreign Lender Certificate
Exhibit D-2 - Form of Foreign Lender Certificate
(ii)
FIVE-YEAR CREDIT AGREEMENT
Dated as of October 30, 1996
THE WALT DISNEY COMPANY, a Delaware corporation (the "Borrower"), the
banks, financial institutions and other institutional lenders (the "Initial
Lenders") listed on the signature pages hereof under the heading "The Initial
Lenders", CITICORP USA, INC., a Delaware corporation ("CUSA"), as administrative
agent (together with any successor Administrative Agent appointed pursuant to
Article VII, the "Administrative Agent") for the Lenders (as hereinafter
defined) hereunder, and CREDIT SUISSE, a Swiss banking corporation ("Credit
Suisse"), and BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, a national
banking corporation ("Bank of America"), as co-administrative agents (the "Co-
Administrative Agents") for the Lenders hereunder, hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
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following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ABC" means ABC, Inc. (successor in interest to Capital Cities/ABC,
Inc.), a New York corporation and a wholly owned subsidiary of the
Borrower, or any successor thereto.
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"Administrative Agent's Account" means such account of the
Administrative Agent maintained by the Administrative Agent at the office
of Citibank at 399 Park Avenue, New York, New York 10043, as the
Administrative Agent shall notify the Borrower and the Lenders from time to
time.
"Advance" means an advance by a Lender to the Borrower as part of a
Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance,
each of which shall be a "Type" of 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 officer of such Person.
"Agreement" means this Five-Year Credit Agreement, as it may be
amended, supplemented or otherwise modified from time to time in accordance
with Section 8.01.
"Anniversary Date" means February 15, 1998 and February 15 in each
succeeding calendar year occurring during the term of this Agreement.
2
"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.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent and the Borrower, in substantially the form of Exhibit
B hereto.
"Assuming Lender" has the meaning specified in Section 2.19(d).
"Assumption Agreement" has the meaning specified in Section
2.19(d)(ii).
"Bank of America" has the meaning specified in the recital of parties
to this Agreement.
"Base Rate" means, for each day in any period, a fluctuating interest
rate per annum as shall be in effect from time to time, which rate per
annum shall at all times for such day during such period be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate in effect
for such day;
(b) the sum (adjusted to the nearest 1/4 of one percent or, if
there is no nearest 1/4 of one percent, to the next higher 1/4 of one
percent) of (i) 0.50%, (ii) the rate obtained by dividing (A) the
latest three-week moving average of secondary market morning offering
rates in the United States for three-month certificates of deposit of
major United States money market banks, such three-week moving average
(adjusted on the basis of a year of 365 or 366 days, as the case may
be) being determined weekly on each Monday (or, if any such day is not
a Business Day, on the next succeeding Business Day) for the three-
week period ending on the previous Friday by Citibank on the basis of
such rates reported by certificate of deposit dealers to and published
by the Federal Reserve Bank of New York or, if such publication shall
be suspended or terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of deposit
dealers of recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily percentages
specified during such three-week period by the Board of Governors of
the Federal Reserve System (or any successor thereto) for determining
the maximum reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement) for
Citibank in respect of liabilities consisting of or including (among
other liabilities) three-month U.S. dollar nonpersonal time deposits
in the United States, and (iii) the average during such three-week
period of the annual assessment rates estimated by Citibank for
determining the then current annual assessment payable by Citibank to
the Federal Deposit Insurance Corporation (or any successor thereto)
for insuring U.S. dollar deposits of Citibank in the United States;
and
(c) 0.50% per annum above the Federal Funds Rate for such day.
3
"Base Rate Advance" means an Advance which bears interest as provided
in Section 2.06(a)(i).
"Borrowing" means a borrowing consisting of simultaneous Advances of
the same Type made by each of the Lenders pursuant to Section 2.01.
"Business Day" means a day of the year on which banks are not required
or authorized to close in Los Angeles, California, or New York City, New
York, or San Francisco, California, or, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which dealings are carried on
in the London interbank market.
"Citibank" means Citibank, N.A., a national banking association.
"Co-Administrative Agents" has the meaning specified in the recital of
parties to this Agreement.
"Commitment" has the meaning specified in Section 2.01.
"Commitment Date" has the meaning specified in Section 2.19(b).
"Commitment Increase" has the meaning specified in Section 2.19(a).
"Consenting Lender" has the meaning specified in Section 2.20(b).
"Consolidated EBITDA" means, for any period, (a) net income or net
loss, as the case may be, of the Borrower and its subsidiaries on a
consolidated basis for such period, as determined in accordance with GAAP
for such period, plus (b) the sum of all amounts which, in the
determination of such consolidated net income or net loss, as the case may
be, for such period, have been deducted for (i) Consolidated Interest
Expense, (ii) consolidated income tax expense, (iii) consolidated
depreciation expense, and (iv) consolidated amortization expense, in each
case determined in accordance with GAAP for such period.
"Consolidated Interest Expense" means, for any period, total interest
expense of the Borrower and its subsidiaries with respect to all
outstanding Debt of the Borrower and its subsidiaries during such period,
all as determined on a consolidated basis for such period and in accordance
with GAAP for such period.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of another Type pursuant to Section 2.08
or 2.09.
"Credit Suisse" has the meaning specified in the recital of parties to
this Agreement.
"CUSA" has the meaning specified in the recital of parties to this
Agreement.
"Debt" means, with respect to any Person: (a) indebtedness for
borrowed money, (b) obligations evidenced by bonds, debentures, notes or
other similar instruments, (c) obligations
4
to pay the deferred purchase price of property or services (other than
trade payables incurred in the ordinary course of business), (d)
obligations as lessee under leases which shall have been or should be, in
accordance with GAAP, recorded as capital leases and (e) obligations under
direct or indirect guaranties in respect of, and obligations (contingent or
otherwise) to purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, indebtedness or obligations of any
other Person of the kinds referred to in clauses (a) through (d) above.
"Disney" means Disney Enterprises, Inc., a Delaware corporation and a
wholly owned subsidiary of the Borrower, or any successor thereto.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assumption Agreement or the
Assignment and Acceptance, as the case may be, 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 Administrative Agent for such
purpose.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (a) a Lender or any Affiliate of a Lender or
(b) any bank or other financial institution, or any other Person, which has
been approved in writing by the Borrower and the Administrative Agent as an
Eligible Assignee for purposes of this Agreement; provided, however, that
neither the Borrower's approval nor the Administrative Agent's approval
shall be unreasonably withheld; and provided further, however, that the
Borrower may withhold its approval if the Borrower reasonably believes that
an assignment to such Eligible Assignee pursuant to Section 8.07 will
result in the incurrence of increased costs payable by the Borrower
pursuant to Section 2.11 or 2.14.
"Environmental Claim" means any administrative, regulatory or judicial
action, suit, demand, claim, lien, notice or proceeding relating to any
Environmental Law or any Environmental Permit.
"Environmental Law" means any federal, state or local statute, law,
rule, regulation, ordinance, code or duly promulgated policy or rule of
common law, now or hereafter in effect, and in each case as amended, and
any judicial or administrative interpretation thereof, including any order,
consent decree or judgment, relating to the environment, health, safety or
any Hazardous Material.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any applicable
Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and the 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 of the
Internal Revenue Code of 1986, as amended.
5
"ERISA Event" means: (a) (i) the occurrence with respect to a Plan of
a reportable event, within the meaning of Section 4043 of ERISA, unless the
30-day notice requirement with respect thereto has been waived by the
Pension Benefit Guaranty Corporation or (ii) the provisions of paragraph
(1) of Section 4043(b) of ERISA (without regard to paragraph (2) of such
Section) are applicable with respect to 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 could
reasonably be expected to occur with respect to such Plan within the
following 30 days; (b) 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); (c) the cessation of operations by the
Borrower or any ERISA Affiliate at a facility in the circumstances
described in Section 4062(e) of ERISA; (d) 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; (e) the failure by the Borrower or any ERISA Affiliate to make a
payment to a Plan described in Section 302(f)(1)(A) of ERISA; (f) the
adoption of an amendment to a Plan requiring the provision of security to
such Plan, pursuant to Section 307 of ERISA; or (g) the institution by the
Pension Benefit Guaranty Corporation of proceedings to terminate a Plan,
pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition which is reasonably likely to constitute grounds under Section
4042 of ERISA 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.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule I hereto or in the Assumption Agreement or the
Assignment and Acceptance, as the case may be, 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 Administrative Agent for such purpose.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same 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 by the principal
office of each of the Reference Banks in London, England to 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 for a period equal to such
Interest Period and in an amount substantially equal to such Reference
Bank's (or, in the case of Citibank, CUSA's) Eurodollar Rate Advance
comprising part of such Borrowing. The Eurodollar Rate for any Interest
Period for each Eurodollar Rate Advance comprising part of the same
Borrowing shall be determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the Administrative 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.
6
"Eurodollar Rate Advance" means an Advance which bears interest as
provided in Section 2.06(a)(ii).
"Eurodollar Rate Margin" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
[Download Table]
============================================================
Public Debt Rating
S&P/Moody's Applicable Margiin
============================================================
Level 1
-------
AA-/Aa3 or above 0.100%
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Level 2
-------
Lower than AA-/Aa3 but
at least A/A2 0.115%
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Level 3
-------
Lower than A/A2 but
at least A-/A3 0.130%
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Level 4
-------
Lower than A-/A3 or no
Public Debt Rating in effect 0.160%
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"Eurodollar Rate Reserve Percentage" means, with respect to any Lender
for any Interest Period for any Eurodollar Rate Advance, the reserve
percentage applicable during such Interest Period (or, if more than one
such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any such
percentage shall be so applicable) under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor thereto) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for such Lender with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities having a term
equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Credit Agreements" means, collectively, (a) the 364-Day
Credit Agreement dated as of October 31, 1995 among DC Holdco, Inc.
(predecessor in interest to The Walt Disney Company), the financial
institutions party thereto, CUSA, as the administrative agent thereunder,
and Credit Suisse, as the co-administrative agent thereunder, as amended,
supplemented or otherwise modified to (but not including) the Effective
Date, and (b) the Five-Year Credit Agreement dated as of October 31, 1995
among DC Holdco, Inc. (predecessor in interest to The Walt Disney Company),
the financial institutions party thereto, CUSA, as the administrative agent
thereunder, and Credit Suisse, as the co-administrative agent thereunder,
as amended, supplemented or otherwise modified to (but not including) the
Effective Date.
"Extension Date" has the meaning specified in Section 2.20(b).
7
"Facility Fee Percentage" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on such
date as set forth below:
[Download Table]
============================================================
Public Debt Rating
S&P/Moody's Percentage
============================================================
Level 1
-------
AA-/Aa3 or above 0.050%
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Level 2
-------
Lower than AA-/Aa3 but 0.060%
at least A/A2
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Level 3
-------
Lower than A/A2 but 0.070%
at least A-/A3
------------------------------------------------------------
Level 4
-------
Lower than A-/A3 or no 0.090%
Public Debt Rating in effect
============================================================
"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
immediately preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by the Administrative Agent.
"GAAP" means generally accepted accounting principles consistent with
those applied in the preparation of the audited financial statements
referred to in Section 4.01(c)(i) dated September 30, 1995, subject,
however, to the provisions of Section 1.03.
"Hazardous Material" means (a) any petroleum or petroleum product,
natural or synthetic gas, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, or radon gas, (b) any substance
defined as or included in the definition of "hazardous substances",
hazardous wastes", hazardous materials", "toxic substances", "contaminants"
or "pollutants", or words of similar import, under any applicable
Environmental Law or (c) any other substance to which exposure is regulated
by any governmental or regulatory authority.
"Increase Date" has the meaning specified in Section 2.19(a).
"Increasing Lender" has the meaning specified in Section 2.19(b).
"Indemnified Matters" has the meaning specified in Section 8.08.
8
"Indemnified Party" has the meaning specified in Section 8.08.
"Informed Parties" has the meaning specified in Section 8.09.
"Initial Lender" has the meaning specified in the recital of parties
to this Agreement.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or on 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, 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, six or, if
generally available to all of the Lenders, twelve months as the Borrower
may, upon notice received by the Administrative Agent not later than 1:00
P.M. (New York City time) on the third Business Day prior to the first day
of such Interest Period, select; provided, however, that:
(i) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing shall
be of the same duration;
(ii) 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 succeeding
calendar month, the last day of such Interest Period shall occur on
the immediately preceding Business Day;
(iii) 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; and
(iv) the Borrower may not select for any Advance any Interest
Period which ends after the scheduled Termination Date then in effect.
"IRS" has the meaning specified in Section 2.14(e).
"Lenders" means, collectively, each Initial Lender, each Assuming
Lender that shall become a party hereto pursuant to Section 2.19 or 2.20
and each Eligible Assignee that shall become a party hereto pursuant to
Section 8.07; provided, however, that for purposes of any determination to
be made under Section 2.07, 2.11, 2.12 or 8.04(b) with respect to CUSA, in
its capacity as a Lender, the term "Lenders" shall be deemed to include
Citibank.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement
which has the same effect as a lien or security interest.
9
"Majority Lenders" means, at any time, Lenders owed at least a
majority in interest of the aggregate unpaid principal amount of the
Advances owing to the Lenders at such time, or, if no such principal amount
is outstanding at such time, Lenders having at least a majority in interest
of the Commitments at such time; provided, however, that neither the
Borrower nor any of its Affiliates, if a Lender, shall be included in the
determination of the Majority Lenders at any time.
"Material Subsidiary" means, at any date of determination, a
subsidiary of the Borrower that, either individually or together with its
subsidiaries, taken as a whole, has total assets exceeding $100,000,000 on
such date.
"Measurement Period" means, at any date of determination, the most
recently completed four consecutive fiscal quarters of the Borrower on or
immediately prior to such date.
"Moody's" means Moody's Investors Service, Inc. or any successor
thereto.
"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 (i) 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 (ii) was so maintained and in respect
of which the Borrower or an ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Non-Consenting Lender" has the meaning specified in Section 2.20(b).
"Note" has the meaning specified in Section 2.17.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Other Taxes" has the meaning specified in Section 2.14(b).
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any political subdivision
or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Public Debt Rating" means, as of any date of determination, the
higher 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 public debt issued by the Borrower. For purposes of the
foregoing, (a) if only one of S&P and Moody's shall have in effect a Public
Debt Rating, the Eurodollar Rate Margin and the Facility Fee Percentage
shall be determined by
10
reference to the available rating; (b) if neither S&P nor Moody's shall
have in effect a Public Debt Rating, the Eurodollar Rate Margin and the
Facility Fee Percentage will be set in accordance with Level 4 under the
definition of "Eurodollar Rate Margin" or "Facility Fee Percentage", as the
case may be; (c) if the ratings established by S&P and Moody's shall fall
within different levels, the Eurodollar Rate Margin and the Facility Fee
Percentage shall be based upon the higher rating; (d) 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 (e) 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, Credit Suisse, Bank of America and
Barclays Bank PLC, or, in the event that less than two of such banks remain
Lenders hereunder at any time, any other commercial bank designated by the
Borrower and approved by the Majority Lenders as constituting a "Reference
Bank" hereunder.
"Register" has the meaning specified in Section 8.07(c).
"S&P" means Standard & Poor's Ratings Group or any successor thereto.
"SEC" has the meaning specified in Section 5.01(e)(i).
"Significant Subsidiary" means any subsidiary of the Borrower or any
of its subsidiaries that constitutes a "significant subsidiary" under Rule
405 promulgated by the SEC under the Securities Act of 1933, as amended.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (i) is maintained for employees of the
Borrower or an ERISA Affiliate and no Person other than the Borrower and
the ERISA Affiliates or (ii) was so maintained and in respect of which the
Borrower or an ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"Taxes" has the meaning specified in Section 2.14(a).
"Termination Date" means the earlier of (a) February 15, 2002, subject
to the extension thereof pursuant to Section 2.20, and (b) the date of
termination in whole of the aggregate Commitments pursuant to Section 2.04
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 2.20
shall be the Termination Date in effect immediately prior to the applicable
Extension Date for all purposes of this Agreement.
"364-Day Credit Agreement" means the 364-Day Credit Agreement being
entered into on the date of this Agreement among the Borrower, the banks,
financial institutions and other institutional lenders party thereto, CUSA,
as the administrative agent thereunder, and Credit
11
Suisse and Bank of America, as the co-administrative agents thereunder, as
such agreement may be amended, supplemented or otherwise modified hereafter
from time to time.
"Type" has the meaning specified in the definition of "Advance".
"United States" and "U.S." each means the United States of America.
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
means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
----------------
defined herein shall be construed in accordance with GAAP; provided, however,
that if any changes in accounting principles from those used in the preparation
of the financial statements referred to in Section 4.01(c)(i) dated September
30, 1995 hereafter occur by reason of the promulgation of rules, regulations,
pronouncements, opinions or other requirements of the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) and result in a change in
the method of calculation of financial covenants or the terms related thereto
contained in this Agreement, the Borrower shall, at its option, (i) furnish to
the Administrative Agent, together with each delivery of the consolidated
financial statements of the Borrower and its subsidiaries required to be
delivered pursuant to Section 5.01(e), a written reconciliation setting forth
the differences that would have resulted if such financial statements had been
prepared utilizing accounting principles and policies in conformity with those
used to prepare the financial statements referred to in Section 4.01(c)(i) dated
September 30, 1995 or (ii) enter into negotiations with the Administrative Agent
and the Lenders to amend such financial covenants or terms equitably to reflect
such changes so that the criteria for evaluating the financial condition of the
Borrower and its subsidiaries shall be the same after such changes as if such
changes had not been made; provided, however, that at all times in the case of
clause (i) above, and in the case of clause (ii) above until the amendment
referred to in such clause (ii) becomes effective, all covenants and related
calculations under this Agreement shall be performed, observed and determined as
though no such changes in accounting principles had been made.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender severally agrees, on the
------------
terms and conditions hereinafter set forth, to make 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 aggregate amount not to exceed at any time
outstanding the amount set forth opposite such Lender's name on the signature
pages hereof or, if such Lender has become a Lender hereunder pursuant to an
Assumption Agreement, the amount set forth as the Commitment of such Lender in
such Assumption Agreement or, if such Lender has entered into an Assignment and
Acceptance, the amount set forth for such Lender in the Register maintained by
the Administrative Agent pursuant to Section 8.07(c), as such amount may be
reduced pursuant to Section 2.04 or increased pursuant to Section 2.19 (such
Lender's "Commitment"). Each Borrowing shall be in an aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and shall
consist of Advances of the same Type made on the same day by the Lenders ratably
12
according to their respective Commitments. Within the limits of each Lender's
Commitment, the Borrower from time to time 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 Advances. (a) Each Borrowing shall be made
-------------------
on notice, given not later than 11:00 A.M. (New York City time) on the same
Business Day as the date of a proposed Borrowing comprised of Base Rate Advances
and not later than 1:00 P.M. (New York City time) on the third Business Day
prior to the date of a proposed Borrowing comprised of Eurodollar Rate Advances,
by the Borrower to the Administrative Agent, which shall give to each Lender
prompt notice thereof by telecopier or telex. Each such notice of a Borrowing (a
"Notice of Borrowing") shall be by telecopier or telex, or by telephone,
confirmed immediately by telecopier or telex, in substantially the form of
Exhibit A hereto, specifying therein the requested (i) date of such Borrowing
(which shall be a Business Day), (ii) Type of Advances comprising such
Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a
Borrowing comprised of Eurodollar Rate Advances, initial Interest Period for
each such Advance. Each Lender shall, before 1:00 P.M. (New York City time) on
the date of such Borrowing, make available for the account of its Applicable
Lending Office to the Administrative Agent at the Administrative Agent's
Account, in same day funds, such Lender's ratable portion of such Borrowing.
After the Administrative Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the Administrative Agent
will make such funds available to the Borrower at the office where the
Administrative Agent's Account is maintained.
(b) Anything in subsection (a) above or Section 2.01 to the contrary
notwithstanding, the Borrower may not select Eurodollar Rate Advances for any
Borrowing if the aggregate amount of such Borrowing is less than $20,000,000 or
if the obligation of the Lenders to make Eurodollar Rate Advances shall be
suspended at such time pursuant to Section 2.08.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing which the related Notice of 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 Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss, cost or expense incurred
by reason of the liquidation or reemployment of deposits or other funds acquired
by such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that any Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender agrees to pay to the Administrative 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 paid
to the Administrative Agent, at the Federal Funds Rate; provided, however, that
(i) within two Business Days after any Lender shall fail to make such ratable
portion available to the Administrative Agent, the Administrative Agent shall
notify the Borrower of such failure
13
and (ii) if such Lender shall not have paid such corresponding amount to the
Administrative Agent within two Business Days after such demand is made of such
Lender by the Administrative Agent, the Borrower agrees to repay to the
Administrative Agent forthwith, upon demand by the Administrative Agent to the
Borrower, 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 Administrative Agent, at the interest rate applicable at
the time to Advances comprising such Borrowing. If and to the extent such
corresponding amount shall be paid by such Lender to the Administrative Agent in
accordance with this Section 2.02(d), such amount so paid shall constitute such
Lender's Advance as part of such Borrowing for all purposes of this Agreement.
(e) The failure of any Lender to make the 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 Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Facility Fee. The Borrower agrees to pay to each Lender
------------
a facility fee on the average daily amount (whether used or unused) of such
Lender's Commitment from the Effective Date, in the case of each Initial Lender,
and from the later of (a) the Effective Date and (b) the effective date
specified in the Assumption Agreement or the Assignment and Acceptance pursuant
to which it became a Lender, in the case of each other Lender, until, in each
case, the Termination Date, payable quarterly in arrears on the first Business
Day of each January, April, July and October during the term of such Lender's
Commitment, commencing January 2, 1997, and on the Termination Date, at the rate
per annum equal to the Facility Fee Percentage in effect from time to time.
SECTION 2.04. Reduction of the Commitments. The Borrower shall have
----------------------------
the right, upon at least three Business Days' notice to the Administrative
Agent, to terminate in whole or reduce ratably in part the unused portions of
the respective Commitments of the Lenders, provided that each partial reduction
shall be in the aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof.
SECTION 2.05. Repayment of Advances. The Borrower shall repay to each
---------------------
Lender on the Termination Date the aggregate principal amount of the Advances
owing to such Lender on such date.
SECTION 2.06. Interest on Advances. (a) Scheduled Interest. The
-------------------- ------------------
Borrower shall pay to each Lender interest on the unpaid principal amount of
each Advance owing to such Lender from the date of such 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 Advance is a Base
------------------
Rate Advance, a rate per annum equal at all times to the remainder of (A)
the Base Rate in effect from time to time minus (B) the Facility Fee
Percentage in effect from time to time, payable quarterly in arrears on the
first Business Day of each January, April, July and October and 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 Advance is
------------------------
a Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (A) the Eurodollar Rate for
such Interest Period for such Advance and (B) the
14
Eurodollar Rate Margin 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 the date which occurs three months
and, if applicable, six months, nine months and twelve months after 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 the unpaid
----------------
principal amount of each Advance that is not paid when due and on the unpaid
amount of all interest, fees and other amounts payable hereunder that is not
paid when due, payable on demand, at a rate per annum equal at all times to (i)
in the case of any amount of principal, the greater of (x) 2% per annum above
the rate per annum required to be paid on such Advance immediately prior to the
date on which such amount became due and (y) 2% per annum above the Base Rate in
effect from time to time and (ii) to the fullest extent permitted by law, in the
case of all other amounts, 2% per annum above the Base Rate in effect from time
to time.
SECTION 2.07. Additional Interest on Eurodollar Rate Advances. The
-----------------------------------------------
Borrower shall pay to each Lender, so long as such Lender shall be required
under regulations of the Board of Governors of the Federal Reserve System to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, additional interest on the unpaid principal
amount of each Eurodollar Rate Advance of such Lender, from the date of such
Advance until such principal amount is paid in full, at an interest rate per
annum equal at all times to the remainder obtained by subtracting (i) the
Eurodollar Rate for the applicable Interest Period for such Advance from (ii)
the rate obtained by dividing such Eurodollar Rate by a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage of such Lender for such Interest
Period, payable on each date on which interest is payable on such Advance. Such
additional interest shall be determined by such Lender and notified in
reasonable detail to the Borrower through the Administrative Agent.
SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank
---------------------------
agrees to furnish to the Administrative Agent timely information for the purpose
of determining each Eurodollar Rate. If any one or more of the Reference Banks
shall not furnish such timely information to the Administrative Agent for the
purpose of determining such interest rate, the Administrative Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks.
(b) The Administrative Agent shall give prompt notice to the Borrower
and the Lenders of the applicable interest rate determined by the Administrative
Agent for purposes of Section 2.06(a)(i) or (a)(ii), and the rate, if any,
furnished by each Reference Bank for the purpose of determining the applicable
interest rate under Section 2.06(a)(ii).
(c) If fewer than two Reference Banks furnish timely information to
the Administrative Agent for purposes of determining the Eurodollar Rate for any
Eurodollar Rate Advances, (i) the Administrative Agent shall forthwith notify
the Borrower and the Lenders that the interest rate cannot be determined for
such Eurodollar Rate Advances, (ii) 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, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended until
15
the Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the Majority
Lenders notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Majority Lenders (which cost each such Majority Lender reasonably determines in
good faith is material) of making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the Lenders, whereupon, unless the
Eurodollar Rate Margin shall be increased to reflect such costs as determined by
such Majority Lenders and as agreed by the Borrower, (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 until the Majority Lenders shall notify the Administrative Agent, and
the Administrative Agent shall in turn notify the Borrower and the Lenders, that
the circumstances causing such suspension no longer exist. The Administrative
Agent shall use reasonable efforts to determine from time to time whether the
circumstances causing such suspension no longer exist and, promptly after the
Administrative Agent knows that the circumstances causing such suspension no
longer exist, the Administrative Agent shall so notify the Borrower and the
Lenders.
(e) 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
Administrative Agent will forthwith so notify the Borrower and the Lenders and
such Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(f) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $20,000,000, such Eurodollar Rate
Advances shall automatically Convert into Base Rate Advances and, on and after
such date, the right of the Borrower to Convert such Advances into Eurodollar
Rate Advances shall terminate; provided, however, that if and so long as each
such Eurodollar Rate Advance shall have the same Interest Period as Eurodollar
Rate Advances comprising another Borrowing or Borrowings, and the aggregate
unpaid principal amount of all such Eurodollar Rate Advances shall equal or
exceed $20,000,000, the Borrower shall have the right to continue all such
Eurodollar Rate Advances as, or to Convert all such Advances into, Eurodollar
Rate Advances having such Interest Period.
(g) 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.
SECTION 2.09. Optional Conversion of Advances. The Borrower may on
-------------------------------
any Business Day, upon notice given to the Administrative Agent not later than
11:00 A.M. (New York City time) on the same Business Day as the date of the
proposed Conversion in the case of a Conversion of Eurodollar Rate Advances into
Base Rate Advances, and not later than 1:00 P.M. (New York City time) on the
third Business Day prior to the date of the proposed Conversion in the case of a
Conversion of Base Rate Advances into Eurodollar Rate Advances or of Eurodollar
Rate Advances of one Interest Period into Eurodollar Rate Advances of another
Interest Period, as the case may be, and subject to the provisions
16
of Sections 2.08, 2.09 and 2.12, Convert all Advances of one Type comprising the
same Borrowing into Advances of the other Type; provided, however, that any
Conversion of any Eurodollar Rate Advances into Base Rate Advances or into
Eurodollar Rate Advances of another Interest Period shall be made on, and only
on, the last day of an Interest Period for such Eurodollar Rate Advances.
Promptly upon receipt from the Borrower of a notice of a proposed Conversion
hereunder, the Administrative Agent shall give notice of such proposed
Conversion to each Lender. Each such notice of a Conversion shall, within the
restrictions set forth above, specify (i) the date of such Conversion (which
shall be a Business Day), (ii) the 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. The Borrower may Convert all Eurodollar
Rate Advances of any one Lender into Base Rate Advances of such Lender in
accordance with the provisions of Section 2.12 by complying with the procedures
set forth therein and in this Section 2.09 as though each reference in this
Section 2.09 to Advances of any Type was to such Advances of such Lender. Each
such notice of Conversion shall, subject to the provisions of Sections 2.08 and
2.12, be irrevocable and binding on the Borrower.
SECTION 2.10. Prepayments of Advances. The Borrower may, upon not
-----------------------
less than the same Business Day's notice to the Administrative Agent received
not later than 11:00 A.M. (New York City time) in the case of Borrowings
consisting of Base Rate Advances and upon at least three Business Days' notice
to the Administrative Agent received not later than 1:00 P.M. (New York City
time) in the case of Borrowings consisting of Eurodollar Rate Advances, stating
the proposed date and aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the outstanding principal amounts of
the Advances constituting part of the same Borrowings in whole or ratably in
part, together with accrued interest to the date of such prepayment on the
principal amount prepaid; provided, however, that (a) each partial prepayment
shall be in an aggregate principal amount of $1,000,000 or an integral multiple
of $1,000,000 in excess thereof, and (b) in the case of any such prepayment of
Eurodollar Rate Advances, the Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 8.04(b).
SECTION 2.11. Increased Costs. (a) If after the date hereof, due to
---------------
either (i) the introduction of or any change (other than any change by way of
imposition or increase of reserve requirements included in the Eurodollar Rate
Reserve Percentage) in or in the interpretation of any law or regulation or (ii)
the compliance with any hereafter promulgated 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 (excluding any allocation of
corporate overhead) to any Lender (which cost such Lender reasonably determines
in good faith is material) of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances, then such Lender shall so notify the Borrower promptly
after such Lender knows of such increased cost and determines that such cost is
material and the Borrower shall from time to time, upon demand by such Lender
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost. A certificate of
such Lender as to the amount of such increased cost in reasonable detail and
stating the basis upon which such amount has been calculated and certifying that
such Lender's method of allocating such costs is fair and reasonable and that
such Lender's demand for payment of such costs hereunder is not inconsistent
with its treatment of other borrowers which, as a credit matter, are
substantially similar to the Borrower and which are subject to similar
provisions, submitted to the Borrower and the Administrative Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest error.
17
(b) If, after the date hereof, either (i) the introduction of or
change in or in the interpretation of any law or regulation or (ii) the
compliance by any Lender with any hereafter promulgated guideline or request
from any central bank or other governmental authority (whether or not having the
force of law) affects or would affect the amount of capital required or expected
to be maintained by such Lender or any corporation controlling such Lender and
the amount of such capital is materially increased by or based upon the
existence of such Lender's commitment to lend hereunder and other commitments of
this type, then such Lender shall so notify the Borrower promptly after such
Lender makes such determination and, upon demand by such Lender (with a copy of
such demand to the Administrative Agent), the Borrower shall pay to such Lender
within five days from the date of such demand, from time to time as specified by
such Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, 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 of such Lender as
to such amount in reasonable detail and stating the basis upon which such amount
has been calculated and certifying that such Lender's method of allocating such
increase of capital is fair and reasonable and that such Lender's demand for
payment of such increase of capital hereunder is not inconsistent with its
treatment of other borrowers which, as a credit matter, are substantially
similar to the Borrower and which are subject to similar provisions, submitted
to the Borrower and the Administrative Agent by such Lender, shall be conclusive
and binding for all purposes, absent manifest error.
(c) The Borrower shall not be obligated to pay under this Section
2.11 any amounts which relate to costs or increases of capital incurred prior to
the 12 months immediately preceding the date of demand for payment of such
amounts, unless the applicable law, regulation, guideline or request resulting
in such costs or increases of capital is imposed retroactively. In the case of
any law, regulation, guideline or request which is imposed retroactively, the
Lender making demand for payment of any amount under this Section 2.11 shall
notify the Borrower not later than 12 months from the date that such Lender
should reasonably have known of such law, regulation, guideline or request and
the Borrower's obligation to compensate such Lender for such amount is
contingent upon such Lender's so notifying the Borrower; provided, however, that
any failure by such Lender to provide such notice shall not affect the
Borrower's obligations under this Section 2.11 with respect to amounts resulting
from costs or increases of capital incurred after the date which occurs 12
months immediately preceding the date on which such Lender notified the Borrower
of such law, regulation, guideline or request.
(d) If any Lender shall subsequently recoup any costs (other than
from the Borrower) for which such Lender has theretofore been compensated by the
Borrower under this Section 2.11, such Lender shall remit to the Borrower an
amount equal to the amount of such recoupment. Amounts required to be paid by
the Borrower pursuant to this Section 2.11 shall be paid in addition to, and
without duplication of, any amounts required to be paid pursuant to Section
2.14.
SECTION 2.12. Illegality. Notwithstanding any other provision of this
----------
Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation after the date hereof 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 to fund or maintain Eurodollar Rate Advances
hereunder, (i) the obligation of such Lender to make, or to Convert Base Rate
Advances into, Eurodollar Rate Advances shall be suspended until such Lender
shall notify the Administrative Agent, and the Administrative Agent shall notify
the Borrower and the other Lenders (which notice shall
18
be given promptly after the Administrative Agent knows that the circumstances
causing such suspension no longer exist), that the circumstances causing such
suspension no longer exist and (ii) the Borrower shall forthwith prepay in full
all Eurodollar Rate Advances of such Lender then outstanding, together with
interest accrued thereon, unless the Borrower, within five Business Days of
notice from the Administrative Agent or, if permitted by law, on and as of the
last day of the then existing Interest Period for such Eurodollar Rate Advances,
Converts all Eurodollar Rate Advances of such Lender then outstanding into Base
Rate Advances in accordance with Section 2.09.
SECTION 2.13. Payments and Computations. (a) The Borrower shall make
-------------------------
each payment hereunder and under the Notes, if any, not later than 11:00 A.M.
(New York City time) on the day when due in U.S. dollars to the Administrative
Agent at the Administrative Agent's Account in same day funds. The
Administrative 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 Sections 2.07, 2.11, 2.14, 8.04 and 8.08) 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 any Assuming Lender
becoming a Lender hereunder as a result of a Commitment Increase pursuant to
Section 2.19 or an extension of the Termination Date pursuant to Section 2.20,
and upon the Administrative 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 Administrative 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. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(d), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes, if any, issued in connection therewith 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.
(b) All computations of interest based on clause (a) or (b) of the
definition of "Base Rate" shall be made by the Administrative 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 Administrative Agent, and all computations of
additional interest pursuant to Section 2.07 shall be made by a Lender, 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
Administrative Agent (or, in the case of Section 2.07, by a Lender) 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, if any, 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
fees, as the case may be; provided, however, that if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances to be made in
the next following calendar month, such payment shall be made on the immediately
preceding Business Day.
19
(d) Unless the Administrative 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
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative 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 that the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative 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 Administrative
Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower
-----
hereunder or under the Notes, if any, 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
Administrative Agent, taxes imposed on its income, and franchise taxes imposed
on it, by the jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction of such Lender's
Applicable Lending Office or any political subdivision thereof or by any other
jurisdiction in which such Lender or the Administrative Agent is doing business
that is unrelated to this Agreement (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities 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 to any Lender or the
Administrative 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
Administrative 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 which arise from any payment made hereunder or under the Notes,
if any, or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or the Notes, if any (hereinafter referred to as
"Other Taxes").
(c) The Borrower will indemnify each Lender and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.14) paid by such Lender or the Administrative Agent
(as the case may be) and any liability (including penalties to the extent not
imposed as a result of such Lender's or the Administrative Agent's (as the case
may be) gross negligence or willful misconduct, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within 30 days
from the date such Lender or the Administrative Agent (as the case may be) makes
written demand therefor.
20
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent, at its address referred to in
Section 8.02, the original or a certified copy of a receipt evidencing payment
thereof.
(e) Each Lender that is not created or organized under the laws of
the United States or a political subdivision thereof shall deliver to the
Borrower and the Administrative Agent on or prior to the date of its execution
and delivery of this Agreement, and each such Lender that is not a party hereto
on the date hereof shall deliver to the Borrower and the Administrative Agent on
or prior to the date on which such Lender becomes a Lender pursuant to Section
2.19, 2.20 or 8.07 (as the case may be), a true and accurate certificate
executed in duplicate by a duly authorized officer of such Lender in
substantially the form set out in Exhibit D-1 or D-2 hereto, as applicable, to
the effect that such Lender is eligible under the provisions of an applicable
tax treaty concluded by the United States (in which case the certificate shall
be accompanied by two executed copies of Form 1001 (or any successor or
substitute form or forms) of the Internal Revenue Service (the "IRS") of the
United States), or under Section 1441(c) or 1442 of the Internal Revenue Code
(in which case the certificate shall be accompanied by two copies of IRS Form
4224 (or any successor or substitute form or forms) of the IRS), to receive, as
of the date hereof or as of the date such party becomes a Lender hereto pursuant
to Section 2.19, 2.20 or 8.07 (as the case may be), as appropriate, payments
hereunder without deduction or withholding of United States federal income tax.
Each such Lender further agrees to deliver to the Borrower and the
Administrative Agent from time to time, as reasonably requested by the Borrower
or the Administrative Agent, and in any case before or promptly upon the
occurrence of any events requiring a change in the most recent certificate
previously delivered pursuant to this Section 2.14(e), a true and accurate
certificate executed in duplicate by a duly authorized officer of such Lender in
substantially the form set out in Exhibit D-1 or D-2 hereto, as applicable.
Further, each Lender that delivers a certificate in the form set out in Exhibit
D-1 hereto agrees, to the extent permitted by law, to deliver to the Borrower
and the Administrative Agent within 15 days prior to every third anniversary of
the date of delivery of the initial IRS Form 1001 by such Lender (or more often
if required by law) on which this Agreement is still in effect, two accurate and
complete original signed copies of IRS Form 1001 (or any successor or substitute
form or forms required under the Internal Revenue Code or the applicable
regulations promulgated thereunder) and a certificate in the form set out in
such Exhibit D-1, and each Lender that delivers a certificate in the form set
out in Exhibit D-2 hereto agrees to deliver to the Borrower and the
Administrative Agent, to the extent permitted by law, within 15 days prior to
the beginning of each subsequent taxable year of such Lender (or more often if
required by law) during which this Agreement is still in effect, two accurate
and complete original signed copies of IRS Form 4224 (or any successor or
substitute form or forms required under the Internal Revenue Code or the
applicable regulations promulgated thereunder) and a certificate in the form of
such Exhibit D-2. Each such certificate shall certify as to one of the
following:
(i) that such Lender is eligible to receive payments hereunder
without deduction or withholding of United States federal income tax;
(ii) that such Lender is not eligible to receive payments hereunder
without deduction or withholding of United States federal income tax as
specified therein but does not require additional payments therefor
pursuant to Section 2.14(a) or (c) because it is eligible and able to
recover the full amount of any such deduction or withholding from a source
other than the Borrower; or
21
(iii) that such Lender is not eligible to receive payments hereunder
without deduction or withholding of United States federal income tax as
specified therein and that it is not eligible and able to recover the full
amount of the same from a source other than the Borrower.
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 IRS Form 1001 or 4224,
that any Lender reasonably considers to be confidential, such Lender promptly
shall give notice thereof to the Borrower and the Administrative Agent and shall
not be obligated to include in such form or document such confidential
information; provided that such Lender certifies to the Borrower that the
failure to disclose such confidential information does not increase the
obligations of the Borrower under this Section 2.14.
(f) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.14 shall survive the payment in full of principal and interest on
all Advances and the termination of this Agreement until such date as all
applicable statutes of limitations (including any extensions thereof) have
expired with respect to such agreements and obligations of the Borrower
contained in this Section 2.14.
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 Advances made by it (other than
pursuant to Section 2.07, 2.11, 2.14, 8.04 or 8.08) in excess of its ratable
share of payments on account of the Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participations in
the Advances made by 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. Mandatory Assignment by a Lender; Mitigation. If any
--------------------------------------------
Lender requests from the Borrower either payment of additional interest on
Eurodollar Rate Advances pursuant to Section 2.07, or reimbursement for
increased costs pursuant to Section 2.11, or payment of or reimbursement for
Taxes pursuant to Section 2.14, or if any Lender notifies the Administrative
Agent that it is unlawful for such Lender or its Eurodollar Lending Office to
perform its obligations hereunder pursuant to Section 2.12, (i) such Lender
will, upon three Business Days' notice by the Borrower to such Lender and the
Administrative Agent, to the extent not inconsistent with such Lender's internal
policies and applicable legal and regulatory restrictions, use reasonable
efforts to make, fund or maintain its Eurodollar Rate Advances through another
Eurodollar Lending Office of such Lender if (A) as a result thereof the
additional amounts required to be paid pursuant to Section 2.07, 2.11 or 2.14,
as applicable, in respect of such Eurodollar Rate Advances would be materially
reduced or the provisions of Section 2.12 would not apply to such Lender, as
applicable, and (B) as determined by such Lender in good faith
22
but in its sole discretion, the making or maintaining of such Eurodollar Rate
Advances through such other Eurodollar Lending Office would not otherwise
materially and adversely affect such Eurodollar Rate Advances or such Lender and
(ii) unless such Lender has theretofore taken steps to remove or cure, and has
removed or cured, the conditions creating such obligation to pay such additional
amounts or the circumstances described in Section 2.12, the Borrower may
designate an Eligible Assignee to purchase for cash (pursuant to an Assignment
and Acceptance) all, but not less than all, of the Advances then owing to such
Lender and all, but not less than all, of such Lender's rights and obligations
hereunder, without recourse to or warranty by, or expense to, such Lender, for a
purchase price equal to the outstanding principal amount of each such Advance
then owing to such Lender plus any accrued but unpaid interest thereon and any
accrued but unpaid facility fees owing thereto and, in addition, (A) all
additional costs reimbursements, expense reimbursements and indemnities, if any,
owing in respect of such Lender's Commitment hereunder, and all other accrued
and unpaid amounts owing to such Lender hereunder, at such time shall be paid to
such Lender and (B) if such Eligible Assignee is not otherwise a Lender at such
time, the applicable processing and recordation fee under Section 8.07(a) for
such assignment shall have been paid.
SECTION 2.17. Evidence of Debt. (a) Each Lender shall maintain in
----------------
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Advance owing to
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder. The Borrower
agrees that upon notice by any Lender to the Borrower (with a copy of such
notice to the Administrative Agent) to the effect that a promissory note or
other evidence of indebtedness is required or appropriate in order for such
Lender to evidence (whether for purposes of pledge, enforcement or otherwise)
the Advances owing to, or to be made by, such Lender, the Borrower shall
promptly execute and deliver to such Lender a promissory note or other evidence
of indebtedness, in form and substance reasonably satisfactory to the Borrower
and such Lender (each a "Note"), payable to the order of such Lender in a
principal amount equal to the Commitment of such Lender; provided, however, that
the execution and delivery of such promissory note or other evidence of
indebtedness shall not be a condition precedent to the making of any Advance
under this Agreement.
(b) The Register maintained by the Administrative Agent pursuant to
Section 8.07(c) shall include a control account, and a subsidiary account for
each Lender, in which accounts (taken together) shall be recorded (i) the date
and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii)
the terms of each Assumption Agreement and each Assignment and Acceptance
delivered to and accepted by it, (iii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder, and (iv) the amount of any sum received by the Administrative Agent
from the Borrower hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Administrative Agent in the
Register pursuant to subsection (b) above, and by each Lender in its account or
accounts pursuant to subsection (a) above, shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and payable
from the Borrower to, in the case of the Register, each Lender and, in the case
of such account or accounts, such Lender, under this Agreement, absent manifest
error; provided, however, that the failure of the Administrative Agent or such
Lender to make an entry, or any finding that an entry is
23
incorrect, in the Register or such account or accounts shall not limit or
otherwise affect the obligations of the Borrower under this Agreement.
SECTION 2.18. Use of Proceeds. The proceeds of the Advances shall be
---------------
available (and the Borrower agrees that it shall use such proceeds) to support
the obligations of the Borrower in respect of commercial paper issued by the
Borrower and/or for other general corporate purposes of the Borrower and its
subsidiaries.
SECTION 2.19. Increase in the Aggregate Commitments. (a) The Borrower
-------------------------------------
may, at any time but in any event not more than once in any calendar year prior
to the Termination Date, by notice to the Administrative Agent, request that the
aggregate amount of the Commitments be increased by an amount of $100,000,000 or
an integral multiple of $5,000,000 in excess thereof (each a "Commitment
Increase") to be effective as of a date that is at least 90 days prior to the
scheduled Termination Date then in effect (the "Increase Date") as specified in
the related notice to the Administrative Agent; provided, however, that (i) in
no event shall the aggregate amount of the Commitments at any time exceed
$5,000,000,000, (ii) on the date of any request by the Borrower for a Commitment
Increase and at all times thereafter to and including the related Increase Date,
the Public Debt Rating shall be at least A- by S&P and at least A3 by Moody's
and (iii) no Event of Default, or event that with the giving of notice or
passage of time or both would constitute an Event of Default, shall have
occurred and be continuing as of the date of such request or as of the
applicable Increase Date, or shall occur as a result thereof.
(b) The Administrative Agent shall promptly notify the Lenders of a
request by the Borrower for a Commitment Increase, which notice shall include
(i) the proposed amount of such requested Commitment Increase, (ii) the proposed
Increase Date and (iii) the date by which Lenders wishing to participate in the
Commitment Increase must commit to an increase in the amount of their respective
Commitments (the "Commitment Date"). Each Lender that is willing to participate
in such requested Commitment Increase (each an "Increasing Lender") shall give
written notice to the Administrative Agent on or prior to the Commitment Date of
the amount by which it is willing to increase its Commitment. If the Lenders
notify the Administrative Agent that they are willing to increase the amount of
their respective Commitments by an aggregate amount that exceeds the amount of
the requested Commitment Increase, the requested Commitment Increase shall be
allocated among the Lenders willing to participate therein in such amounts as
are agreed between the Borrower and the Administrative Agent.
(c) Promptly following each Commitment Date, the Administrative Agent
shall notify the Borrower as to the amount, if any, by which the Lenders are
willing to participate in the requested Commitment Increase. If the aggregate
amount by which the Lenders are willing to participate in any requested
Commitment Increase on any such Commitment Date is less than the requested
Commitment Increase, then the Borrower may extend offers to one or more Eligible
Assignees to participate in any portion of the requested Commitment Increase
that has not been committed to by the Lenders as of the applicable Commitment
Date; provided, however, that the Commitment of each such Eligible Assignee
shall be in an amount of $25,000,000 or an integral multiple of $1,000,000 in
excess thereof.
(d) On each Increase Date, each Eligible Assignee that accepts an
offer to participate in a requested Commitment Increase in accordance with
Section 2.19(c) (each such Eligible Assignee and
24
each Eligible Assignee that agrees to an extension of the Termination Date in
accordance with Section 2.20(c), an "Assuming Lender") shall become a Lender
party to this Agreement as of such Increase Date and the Commitment of each
Increasing Lender for such requested Commitment Increase shall be so increased
by such amount (or by the amount allocated to such Lender pursuant to the last
sentence of Section 2.19(b)) as of such Increase Date; provided, however, that
the Administrative Agent shall have received on or before such Increase Date the
following, each dated such date:
(i) (A) certified copies of resolutions of the Board of Directors
of the Borrower or the Executive Committee of such Board approving the
Commitment Increase and the corresponding modifications to this Agreement
and (B) an opinion of counsel for the Borrower (which may be in-house
counsel), in substantially the form of Exhibit C hereto;
(ii) an assumption agreement from each Assuming Lender, if any, in
form and substance satisfactory to the Borrower and the Administrative
Agent (each an "Assumption Agreement"), duly executed by such Eligible
Assignee, the Administrative Agent and the Borrower; and
(iii) confirmation from each Increasing Lender of the increase in
the amount of its Commitment in a writing satisfactory to the Borrower and
the Administrative Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.19(d), the Administrative Agent
shall notify the Lenders (including, without limitation, each Assuming Lender)
and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier or
telex, of the occurrence of the Commitment Increase to be effected on such
Increase Date and shall record in the Register the relevant information with
respect to each Increasing Lender and each Assuming Lender on such date.
SECTION 2.20. Extension of Termination Date. (a) At least 45 days but
-----------------------------
not more than 75 days prior to the next Anniversary Date, the Borrower, by
written notice to the Administrative Agent, may request an extension of the
Termination Date in effect at such time by one calendar year from its then
scheduled expiration; provided, however, that, if the Borrower does not request
an extension of the Termination Date in a timely manner prior to any Anniversary
Date it may, but shall not be obligated to, request that the Termination Date be
extended for two consecutive calendar years from its then scheduled expiration
by making a request therefor in a timely manner prior to the next succeeding
Anniversary Date. The Administrative Agent shall promptly notify each Lender of
such request, and each Lender shall in turn, in its sole discretion, not later
than 30 days prior to such next Anniversary Date, notify the Borrower and the
Administrative Agent in writing as to whether such Lender will consent to such
extension. If any Lender shall fail to notify the Administrative Agent and the
Borrower in writing of its consent to any such request for extension of the
Termination Date at least 30 days prior to the next Anniversary Date, such
Lender shall be deemed to be a Non-Consenting Lender with respect to such
request. The Administrative Agent shall notify the Borrower not later than 25
days prior to such next Anniversary Date of the decision of the Lenders
regarding the Borrower's request for an extension of the Termination Date.
(b) If all of the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.20, the Termination Date in
effect at such time shall, effective as at such
25
next Anniversary Date (the "Extension Date"), be extended for one calendar year
or two calendar years, as properly requested; provided that on each Extension
Date, no Event of Default, or event that with the giving of notice or passage of
time or both would constitute an Event of Default, shall have occurred and be
continuing, or shall occur as a consequence thereof. If less than all of the
Lenders consent in writing to any such request in accordance with subsection (a)
of this Section 2.20, the Termination Date in effect at such time shall,
effective as at the applicable Extension Date, 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 2.20
and the Commitment of such Lender is not assumed in accordance with subsection
(c) of this Section 2.20 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, 8.04 and 8.08, 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 2.20, 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 $25,000,000 unless the amount of the Commitment of such Non-
Consenting Lender is less than $25,000,000, 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, 8.04 and 8.08, 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 Administrative
Agent an Assumption Agreement, duly executed by such Assuming Lender, such Non-
Consenting Lender, the Borrower and
26
the Administrative Agent, (B) any such Consenting Lender shall have delivered
confirmation in writing satisfactory to the Borrower and the Administrative
Agent as to the increase in the amount of its Commitment and (C) each Non-
Consenting Lender being replaced pursuant to this Section 2.20 shall have
delivered to the Administrative 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 all of the Lenders (after giving effect to any assignments
pursuant to subsection (b) of this Section 2.20) 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
Administrative Agent shall so notify the Borrower, and, so long as no Event of
Default, or event that with the giving of notice or passage of time or both
would constitute an Event of Default, shall have occurred and be continuing as
of such Extension Date, or shall occur as a consequence thereof, the Termination
Date then in effect shall be extended for the additional one-year period or two-
year period, as the case may be, as described in subsection (a) of this Section
2.20, 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 Administrative 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 OF EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.
-----------------------------------------------------
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which all of the following conditions precedent
have been satisfied or waived in accordance with Section 8.01:
(a) the Administrative Agent shall have received on or before the
Effective Date the following, each dated the Effective Date, in form and
substance satisfactory to the Administrative Agent: (i) certified copies
of the resolutions of the Board of Directors of the Borrower or the
Executive Committee of such Board authorizing the execution and delivery of
this Agreement, and approving all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to this
Agreement; (ii) a certificate of the Secretary or an Assistant Secretary of
the Borrower certifying the name and true signature of the officer of the
Borrower executing this Agreement on its behalf; (iii) an opinion of David
K. Thompson, Esq., Senior Vice President-Assistant General Counsel of the
Borrower, in substantially the form of Exhibit C hereto; and (iv) an
opinion of Shearman & Sterling, counsel for the Administrative Agent.
27
(b) all consents and approvals of any governmental or regulatory
authority and any other third party necessary in connection with this
Agreement or the consummation of the transactions contemplated hereby shall
have been obtained and shall remain in effect.
(c) there shall have occurred no material adverse change in the
business, financial condition or operations of (i) Disney and its
subsidiaries, taken as a whole, since September 30, 1995, except as
disclosed in periodic or other reports filed by Disney and its subsidiaries
during the period from September 30, 1995 to the date of this Agreement
pursuant to Section 13 of the Securities Exchange Act of 1934, as amended,
copies of which have been furnished to the Initial Lenders prior to the
date of this Agreement, or (ii) the Borrower and its subsidiaries, taken as
a whole, since June 30, 1996, except as disclosed in reports filed by the
Borrower and its subsidiaries, if any, during the period from June 30, 1996
to the date of this Agreement pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended, copies of which have been furnished to
the Initial Lenders prior to the date of this Agreement.
(d) the Borrower shall have paid or prepaid all amounts owing under
the Existing Credit Agreements, and all commitments of the lenders
thereunder shall have been terminated.
(e) the Borrower shall have notified each Lender and the
Administrative Agent in writing as to the proposed Effective Date at least
three Business Days prior to the occurrence thereof.
(f) all of the representations and warranties contained in Section
4.01 shall be correct in all material respects on and as of the Effective
Date, before and after giving effect to such date, as though made on and as
of the Effective Date (except to the extent that such representations and
warranties relate to an earlier date, in which case such representations
and warranties shall have been correct in all material respects on and as
of such earlier date).
(g) no event shall have occurred and be continuing, or shall result
from the occurrence of the Effective Date, that constitutes an Event of
Default or would constitute an Event of Default but for the requirement
that notice be given or time elapse or both.
SECTION 3.02. Conditions Precedent to Each Borrowing. The obligation
--------------------------------------
of each Lender to make an Advance on the occasion of each Borrowing (including
the initial Borrowing) shall be subject to the further conditions precedent that
the Effective Date shall have occurred and on the date of such Borrowing the
following statements shall be true (and each of the giving of the applicable
Notice of Borrowing and the acceptance by the Borrower of the proceeds of such
Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Borrowing such statements are true):
(a) the representations and warranties contained in Section 4.01 are
correct in all material respects on and as of the date of such Borrowing,
before and after giving effect to such Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date (except to
the extent that such representations and warranties relate to an earlier
date, in which case such representations and warranties shall have been
correct in all material respects on and as of such earlier date); and
28
(b) no event has occurred and is continuing, or would result from such
Borrowing or from the application of the proceeds therefrom, which
constitutes an Event of Default or would constitute an Event of Default but
for the requirement that notice be given or time elapse or both.
SECTION 3.03. 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 Administrative 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 Administrative Agent
shall promptly notify the Lenders 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 of the Effective Date and from time to time
thereafter as required under this Agreement as follows:
(a) The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. The Borrower and
each of the Significant Subsidiaries are duly qualified and in good
standing as foreign corporations authorized to do business in each
jurisdiction (other than the respective jurisdictions of their
incorporation) in which the nature of their respective activities or the
character of the properties they own or lease make such qualification
necessary and in which the failure so to qualify would have a material
adverse effect on the financial condition or operations of the Borrower and
its subsidiaries, taken as a whole.
(b) The execution, delivery and performance by the Borrower of this
Agreement and each of the Notes, if any, delivered hereunder 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) any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award or any material contractual restriction
binding on or affecting the Borrower, Disney or ABC; no authorization or
approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for the due
execution, delivery and performance by the Borrower of this Agreement or
the Notes, if any; and 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, subject to applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws affecting creditors' rights
generally and general principles of equity.
(c) (i) At any time prior to the date on which the Borrower first
delivers the audited financial statements of the Borrower and its
subsidiaries pursuant to Section 5.01(e)(ii), Disney's most recent annual
report on Form 10-K containing the consolidated balance sheet of Disney and
its subsidiaries, and the related consolidated statements of income and of
cash flows of Disney
29
and its subsidiaries, copies of which have been furnished to each Initial
Lender prior to the date of this Agreement, fairly present the consolidated
financial condition of Disney and its subsidiaries as at the date of such
balance sheet and the consolidated results of operations of Disney and its
subsidiaries for the fiscal year ended on such date, all in accordance with
generally accepted accounting principles consistently applied, and (ii) at
any time thereafter, the Borrower's most recent annual report on Form 10-K
containing the consolidated balance sheet of the Borrower and its
subsidiaries, and the related consolidated statements of income and of cash
flows of the Borrower and its subsidiaries, copies of which have been
furnished to each Lender pursuant to Section 5.01(e)(ii), fairly present
the consolidated financial condition of the Borrower and its subsidiaries
as at the date of such balance sheet and the consolidated results of
operations of the Borrower and its subsidiaries for the fiscal year ended
on such date, all in accordance with generally accepted accounting
principles consistently applied.
(d) There is no pending or, to the Borrower's knowledge, threatened
claim, action or proceeding affecting the Borrower or any of its
subsidiaries which could reasonably be expected to adversely affect the
financial condition or operations of the Borrower and its subsidiaries,
taken as a whole, or which could reasonably be expected to affect the
legality, validity or enforceability of this Agreement; and to the
Borrower's knowledge, the Borrower and each of its subsidiaries have
complied, and are in compliance, with all applicable laws, rules,
regulations, permits, orders, consent decrees and judgments, except for any
such matters which have not had, and would not reasonably be expected to
have, a material adverse effect on the financial condition or operations of
the Borrower and its subsidiaries, taken as a whole.
(e) The Borrower and the ERISA Affiliates have not incurred and are
not reasonably expected to incur any material liability in connection with
their Single Employer Plans or Multiple Employer Plans, other than ordinary
liabilities for benefits; neither the Borrower nor any ERISA Affiliate has
incurred or is reasonably expected to incur any material withdrawal
liability (as defined in Part I of Subtitle E of Title IV of ERISA) to any
Multiemployer Plan; and no Multiemployer Plan of the Borrower or any ERISA
Affiliate is reasonably expected to be in reorganization or to be
terminated, within the meaning of Title IV of ERISA.
SECTION 4.02. Additional Representations and Warranties of the
------------------------------------------------
Borrower as of Each Increase Date and Each Extension Date. The Borrower
---------------------------------------------------------
represents and warrants on each Increase Date and each Extension Date (and at no
other time) that, as of each such date, the following statements shall be true:
(a) there has been no material adverse change in the business,
financial condition or operations of the Borrower and its subsidiaries,
taken as a whole, since the date of the audited financial statements of the
Borrower and its subsidiaries most recently delivered to the Lenders
pursuant to Section 5.01(e)(ii) prior to the applicable Increase Date or
Extension Date, as the case may be (except as disclosed in periodic or
other reports filed by the Borrower and its subsidiaries pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended, during the
period from the date of the most recently delivered audited financial
statements of the Borrower and its subsidiaries pursuant to Section
5.01(e)(ii) to the date of the request for an increase in the aggregate
Commitments related to such Increase Date or for an extension of the
Termination Date then in effect related to such Extension Date, as the case
may be); and
30
(b) the representations and warranties contained in Section 4.01 are
correct in all material respects on and as of such date, as though made on
and as of such date (except to the extent that such representations and
warranties relate to an earlier date, in which case such representations
and warranties shall have been correct in all material respects on and as
of such earlier date).
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, unless the Majority Lenders shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its
-------------------------
subsidiaries to comply, in all material respects with all applicable laws,
rules, regulations, permits, orders, consent decrees and judgments binding
on the Borrower and its subsidiaries the failure with which to comply would
have a material adverse effect on the financial condition or operations of
the Borrower and its subsidiaries, taken as a whole.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
---------------------
subsidiaries to pay and discharge, before the same shall become delinquent,
if the failure to so pay and discharge would have a material adverse effect
on the financial condition or operations of the Borrower and its
subsidiaries, taken as a whole, (i) all taxes, assessments and governmental
charges or levies imposed upon it or upon its property, and (ii) all lawful
claims which, if unpaid, will by law become a Lien 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,
levy or claim which is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained in
accordance with GAAP.
(c) Preservation of Corporate Existence, Etc. Subject to Section
----------------------------------------
5.02(a), preserve and maintain, and cause each of Disney and ABC to
preserve and maintain, its corporate existence, rights (charter and
statutory) and franchises; provided, however, that none of the Borrower,
Disney or ABC shall be required to preserve any right or franchise if the
loss thereof would not have a material adverse effect on the business,
financial condition or operations of the Borrower and its subsidiaries,
taken as a whole; and provided further, however, that neither Disney nor
ABC shall be required to preserve its corporate existence if the loss
thereof would not have a material adverse effect on the business, financial
condition or operations of the Borrower and its subsidiaries, taken as a
whole.
(d) Maintenance of Interest Coverage Ratio. Maintain as of the last
--------------------------------------
day of each fiscal quarter of the Borrower, commencing with the first
fiscal quarter of the Borrower following the Effective Date, a ratio of (i)
Consolidated EBITDA for the Measurement Period ending on such day to (ii)
Consolidated Interest Expense for the Measurement Period ending on such
day, of not less than 3 to 1.
31
(e) Reporting Requirements. Furnish to the Administrative Agent, on
----------------------
behalf of the Lenders:
(i) as soon as available and in any event within 50 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, the Borrower's quarterly report to shareholders on Form 10-Q
as filed with the Securities and Exchange Commission (the "SEC"), in
each case containing a consolidated balance sheet of the Borrower and
its subsidiaries as of the end of such quarter and consolidated
statements of income and of 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, and a certificate
of any of the Borrower's Chairman of the Board of Directors,
President, Chief Financial Officer, Treasurer, Assistant Treasurer or
Controller (A) stating that no Event of Default, or event that with
the giving of notice or passage of time or both would constitute an
Event of Default, has occurred and is continuing and (B) containing a
schedule which shall set forth the computations used by the Borrower
in determining compliance with the covenant contained in Section
5.01(d);
(ii) as soon as soon as available and in any event within 100
days after the end of each fiscal year of the Borrower, a copy of the
Borrower's annual report to shareholders on Form 10-K as filed with
the SEC, in each case containing consolidated financial statements of
the Borrower and its subsidiaries for such year and a certificate of
any of the Borrower's Chairman of the Board of Directors, President,
Chief Financial Officer, Treasurer, Assistant Treasurer or Controller
(A) stating that no Event of Default, or event that with the giving of
notice or passage of time or both would constitute an Event of
Default, has occurred and is continuing and (B) containing a schedule
which shall set forth the computations used by the Borrower in
determining compliance with the covenant contained in Section 5.01(d);
(iii) promptly after the Borrower obtains actual knowledge of
the occurrence of each Event of Default, and each event that with the
giving of notice or passage of time or both would constitute an Event
of Default, a statement of any of the Borrower's Chairman of the Board
of Directors, President, Chief Financial Officer, Treasurer, Assistant
Treasurer or Controller setting forth details of such Event of Default
or event continuing on the date of such statement, and the action
which the Borrower has taken and proposes to take with respect
thereto;
(iv) promptly after the commencement thereof, notice of any
actions, suits and proceedings before any court or governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, affecting the Borrower or any of its subsidiaries
of the type described in Section 4.01(d);
(v) promptly after the Borrower obtains actual knowledge
thereof, written notice of any pending or threatened Environmental
Claim against the Borrower or any of its subsidiaries or any of their
respective properties which could reasonably be expected to materially
and adversely affect the financial condition or operations of the
Borrower and its subsidiaries, taken as a whole;
32
(vi) promptly after the Borrower obtains actual knowledge of the
occurrence of any ERISA Event which could reasonably be expected to
materially and adversely affect the financial condition or operations
of the Borrower and its subsidiaries, taken as a whole, a statement of
any of the Borrower's Chairman of the Board of Directors, President,
Chief Financial Officer, Treasurer, Assistant Treasurer or Controller
describing such ERISA Event and the action, if any, which the Borrower
has taken and proposes to take with respect thereto;
(vii) promptly after receipt thereof by the Borrower or any
ERISA Affiliate from the sponsor of a Multiemployer Plan, a copy of
each notice received by the Borrower or any ERISA Affiliate concerning
(A) the imposition of withdrawal liability (as defined in Part I of
Subtitle E of Title IV of ERISA) by a Multiemployer Plan, which
withdrawal liability could reasonably be expected to materially and
adversely affect the financial condition or operations of the Borrower
and its subsidiaries, taken as a whole, (B) the reorganization or
termination, within the meaning of Title IV of ERISA, of any
Multiemployer Plan, which reorganization or termination could
reasonably be expected to materially adversely affect the financial
condition or operations of the Borrower and its subsidiaries, taken as
a whole, or (C) the amount of liability incurred, or which may be
incurred, by the Borrower or any ERISA Affiliate in connection with
any event described in subclause (vii)(A) or (vii)(B) above; and
(viii) such other material information reasonably related to
any Lender's credit analysis of the Borrower or any of its
subsidiaries as any Lender through the Administrative Agent may from
time to time reasonably request.
SECTION 5.02. Negative Covenant. So long as any Advance shall remain
-----------------
unpaid or any Lender shall have any Commitment hereunder, the Borrower will not,
without the written consent of the Majority Lenders:
(a) 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 the assets of the
Borrower and its subsidiaries, taken as a whole (whether now owned or
hereafter acquired), to, any Person, or permit any of its subsidiaries to
do so, unless (i) immediately after giving effect to such proposed
transaction, no Event of Default or event which, with the giving of notice
or lapse of time, or both, would constitute an Event of Default would exist
and (ii) in the case of any such merger to which the Borrower is a party,
the Borrower is the surviving corporation or the Person into which the
Borrower shall be merged or formed by any such consolidation shall be a
corporation organized and existing under the laws of the United States or
any State thereof and shall assume the Borrower's obligations hereunder and
under the Notes, if any, in an agreement or instrument reasonably
satisfactory in form and substance to the Majority Lenders.
33
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 the Borrower shall fail to pay any
interest on any Advance or any fee or other amount payable under this
Agreement, in each case within three Business Days after such interest, fee
or other amount becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein or by
the Borrower (or any of its officers) delivered in writing and identified
as delivered in connection with this Agreement shall prove to have been
incorrect in any material respect when made; or
(c) The Borrower shall fail to perform or observe any covenant
contained in Section 5.01(d), Section 5.01(e)(iii) or Section 5.02; or
(d) 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 the failure to perform or observe such other term,
covenant or agreement shall remain unremedied for 30 days after written
notice thereof shall have been given to the Borrower by the Administrative
Agent or any Lender; or
(e) The Borrower or any of its subsidiaries shall fail to pay any
principal of or premium or interest on any Debt which is outstanding in a
principal amount of at least $250,000,000 in the aggregate (but excluding
Debt arising 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
(i) shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt and (ii) shall not have
been cured or waived; 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
any such Debt shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment),
redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or
defease such Debt shall be required to be made, in each case prior to the
stated maturity thereof; or
(f) The Borrower or any Material Subsidiary 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 Material Subsidiary 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 substantially all of its
34
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 any of the actions sought in such
proceeding (including, without limitation, 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 Material Subsidiary shall take any corporate
action to authorize any of the actions set forth above in this subsection
(f); or
(g) Any money judgment, writ or warrant of attachment or similar
process against the Borrower, any Material Subsidiary or any of their
respective assets involving in any case an amount in excess of $100,000,000
is entered and shall remain undischarged, unvacated, unbonded or unstayed
for a period of 30 days or, in any case, within five days of any pending
sale or disposition of any asset pursuant to any such process;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Majority 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 Majority Lenders, by notice to the Borrower,
declare the Advances, all interest thereon and all other amounts payable under
this Agreement to be forthwith due and payable, whereupon the Advances, 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 Advances, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. (a) Each Lender hereby
------------------------
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement of this Agreement or
collection of the Advances), the Administrative 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 Majority Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that the Administrative Agent shall not be required to take
any action which exposes the Administrative Agent to personal liability or which
is contrary to this Agreement or applicable law. The Administrative 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.
(b) The Co-Administrative Agents shall have no duties under this
Agreement other than those afforded to them in their capacities as Lenders, and
each Lender hereby acknowledges that the
35
Co-Administrative Agents have no liability under this Agreement other than those
assumed by them in their capacities as Lenders.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither the
------------------------------------
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable to any Lender 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 Administrative Agent: (i) may treat the Lender which made
any Advance as the holder of the Debt resulting therefrom until the
Administrative Agent receives and accepts an Assumption Agreement entered into
by an Assuming Lender as provided in Section 2.19 or 2.20, as the case may be,
or an Assignment and Acceptance entered into by such Lender, 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
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) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 7.03. CUSA and Affiliates. With respect to its Commitment and
-------------------
the Advances made by it and any Note or Notes issued to it, CUSA 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 Administrative Agent; and the term "Lender"
or "Lenders" shall, unless otherwise expressly indicated, include CUSA in its
individual capacity. CUSA and its respective 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 CUSA was not the
Administrative 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 Administrative Agent or any
other Lender and based on the financial statements referred to in Section
4.01(c)(i) 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 Administrative 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
---------------
Administrative Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of Advances then owing to each of
them (or, if no Advances are at the time outstanding or if any Advances are then
owing to Persons which are not Lenders, ratably according to the respective
36
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 which may be imposed
on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or any action taken or omitted by
the Administrative 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 Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Administrative
Agent promptly upon demand for its ratable share of any out-of-pocket expenses
(including reasonable counsel fees) incurred by the Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal or
bankruptcy proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Administrative
Agent is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Administrative Agent. The Administrative Agent
------------------------------
may resign at any time by giving written notice thereof to the Lenders and the
Borrower and such resignation shall be effective upon the appointment of a
successor Administrative Agent as provided herein. Upon any such resignation,
the Majority Lenders shall have the right to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Majority Lenders, and shall have accepted such appointment, within 30 days after
the retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent. Any successor Administrative Agent appointed hereunder
shall be a commercial bank organized or licensed under the laws of the United
States or of any State thereof, or an Affiliate of any such commercial bank,
having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Administrative Agent's resignation hereunder as
Administrative 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
Administrative Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision
---------------
of this Agreement, 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
Majority 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 (other than the Borrower or any of its Affiliates, if
a Lender, at the time of any such amendment, waiver or consent), do any of the
following: (a) waive any of the conditions specified in Section 3.01 or 3.02,
(b) increase the Commitments of the Lenders (other than as provided in Section
2.19) or subject the Lenders to any additional obligations, (c) reduce the
principal of, or interest on, the Advances or the facility fees payable
hereunder, (d) postpone any date fixed for any payment of principal of, or
interest
37
on, the Advances (other than as provided in Section 2.20), (e) change the
percentage of the Commitments or of the aggregate unpaid principal amount of
Advances, or the number of Lenders, which shall be required for the Lenders or
any of them to take any action hereunder or (f) amend this Section 8.01; and
provided further that no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders required above
to take such action, affect the rights or duties of the Administrative Agent
under this Agreement or any Note.
SECTION 8.02. Notices, Etc. (a) All notices and other communications
------------
provided for hereunder shall, except as otherwise expressly provided for herein,
be in writing (including telecopier, telegraphic or telex communication) and
mailed, telecopied, telegraphed, telexed or delivered, if to the Borrower, at
its address at:
The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521
Attention: Assistant Treasurer
Telecopy Number: (818) 563-1682 and (818) 562-1811
with a copy to:
The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521
Attention: Corporate Legal Department
Telecopy Number: (818) 563-4160
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, as the case may be; and if to the
Administrative Agent, at its address at:
Citicorp USA, Inc.
One Court Square
Long Island City, New York 11120
Attention: Kim Coley
Telecopy Number: (718) 248-4844
with a copy to:
Citicorp Securities, Inc.
One Sansome Street
San Francisco, California 94104
Attention: Mark Wilson
Telecopy Number: (415) 627-6355;
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and communications
shall, when mailed, telecopied, telegraphed or
38
telexed, be effective when deposited in the mails, telecopied, delivered to the
telegraph company or confirmed by telex answerback, respectively, except that
notices and communications to the Administrative Agent pursuant to Article II or
VII shall not be effective until received by the Administrative Agent. Delivery
by telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or of any Exhibit hereto to be executed and
delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.
(b) If any notice required under this Agreement is permitted to be
made, and is made, by telephone, actions taken or omitted to be taken in
reliance thereon by the Administrative Agent or any Lender shall be binding upon
the Borrower notwithstanding any inconsistency between the notice provided by
telephone and any subsequent writing in confirmation thereof provided to the
Administrative Agent or such Lender; provided that any such action taken or
omitted to be taken by the Administrative Agent or such Lender shall have been
in good faith and in accordance with the terms of this Agreement.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
-------------------
Lender or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder 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,
------------------
within five Business Days of demand, all actual and reasonable costs and
expenses, if any (including, without limitation, actual and reasonable counsel
fees and expenses), of the Administrative Agent and each Lender in connection
with the enforcement (whether through legal proceedings or otherwise) of this
Agreement and the other instruments and documents to be delivered hereunder,
including, without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this Section 8.04(a).
(b) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made 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(f) or
2.10 or acceleration of the maturity of the Advances pursuant to Section 6.01 or
for any other reason (other than by reason of a payment pursuant to Section
2.12), the Borrower shall, within five Business Days of demand by any Lender
(with a copy of such demand to the Administrative Agent), pay to such Lender any
amounts required to compensate such Lender for any additional losses, costs or
expenses which it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss, cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund or maintain such Advance.
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
Administrative Agent to declare the Advances due and payable pursuant to the
provisions of Section 6.01, each Lender (and, in the case of CUSA, Citibank) 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, but excluding trust accounts) at any time
held and other indebtedness at any time owing by such Lender (and, in the case
of CUSA, Citibank) 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, whether or not such Lender shall have made any demand
39
under this Agreement. Each Lender agrees promptly to notify the Borrower after
any such set-off and application made by such Lender (and, in the case of CUSA,
Citibank); 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, in
the case of CUSA, Citibank) under this Section are in addition to other rights
and remedies (including, without limitation, other rights of set-off) which such
Lender may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
--------------
(other than Section 2.01, 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, the Administrative Agent and each Co-Administrative
Agent and when the Administrative 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 Administrative Agent,
each Co-Administrative Agent and each Lender and their respective successors and
permitted 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.
SECTION 8.07. Assignments and Participations. (a) Each Lender may and,
------------------------------
if requested by the Borrower upon notice by the Borrower delivered to such
Lender and the Administrative Agent pursuant to clause (ii) of Section 2.16,
will, assign to one or more Eligible Assignees 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 any 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, (ii) the sum of (A) the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment and (B) the amount of the
commitment being contemporaneously assigned under the 364-Day Credit Agreement
by the Person that is such assigning Lender (in both cases determined as of the
date of the Assignment and Acceptance or similar agreement with respect to such
assignments) shall not be less than $50,000,000 in the aggregate (unless such
lesser amount is previously agreed among such assigning Lender, the
Administrative Agent and the Borrower), provided, however, that if the aggregate
amount of the Commitment of such assigning Lender hereunder and its commitment
under the 364-Day Credit Agreement is less than $50,000,000 on the date of such
proposed assignments, such assigning Lender may assign all, but not less than
all, of its remaining rights and obligations under this Agreement and the 364-
Day Credit Agreement (unless an assignment of a portion of such assigning
Lender's obligations hereunder and thereunder is otherwise previously agreed
among such assigning Lender, the Administrative Agent and the Borrower), (iii)
each such assignment shall be to an Eligible Assignee, and (iv) the parties to
each such assignment (other than the Borrower) shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with a processing and recordation fee of
$3,000. 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 (other than any rights such Lender assignor may have under
Sections 2.11, 2.14 and 8.08) 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).
40
(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 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 any of
its subsidiaries or the performance or observance by the Borrower of any of its
obligations under this Agreement or any 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(c)(i) 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 Administrative 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 Administrative Agent to
take such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to
in Section 8.02 a copy of each Assignment and Acceptance and each Assumption
Agreement 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 Administrative 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.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee
and, if applicable, the Borrower, together with any Note subject to such
assignment, the Administrative Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Exhibit B 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.
(e) Each Lender may sell participations to one or more banks or other
entities 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 and
the Advances owing to it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment hereunder)
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and (iv) such Lender shall not agree in any
participation agreement with any participant
41
or proposed participant to obtain the consent of such participant before
agreeing to the amendment, modification or waiver of any of the terms of this
Agreement or any Note, before consenting to any action or failure to act by the
Borrower or any other party hereunder or under any Note, or before exercising
any rights it may have in respect thereof, unless such amendment, modification,
waiver, consent or exercise would (A) increase the amount of such participant's
portion of such Lender's Commitment, (B) reduce the principal amount of or rate
of interest on the Advances or any fee or other amounts payable hereunder to
which such participant would be entitled to receive a share under such
participation agreement, or (C) postpone any date fixed for any payment of
principal of or interest on the Advances or any fee or other amounts payable
hereunder to which such participant would be entitled to receive a share under
such participation agreement.
(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 in writing and directly related to the transactions contemplated
hereunder; 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 in accordance with the terms of Section 8.09.
(g) No participation or assignment hereunder shall be made in violation of
the Securities Act of 1933, as amended from time to time, or any applicable
state securities laws, and each Lender hereby represents that it will make any
Advance for its own account in the ordinary course of its business and not with
a view to the public distribution or sale thereof.
(h) Anything in this Agreement to the contrary notwithstanding, 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 any Note issued to it hereunder) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System (or any successor regulation thereto) and the applicable operating
circular of such Federal Reserve Bank.
SECTION 8.08. Indemnification. The Borrower agrees to indemnify and hold
---------------
harmless the Administrative Agent, each Co-Administrative Agent and each Lender
and each of their Affiliates and their respective 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 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 (whether or not an
Indemnified Party is a party thereto) arising out of, related to or in
connection with the Commitments hereunder or the Advances made pursuant hereto
or any transactions done in connection herewith, including, without limitation,
any transaction in which any proceeds of the Advances are, or are proposed, to
be applied (collectively, the "Indemnified Matters"); provided that the Borrower
shall have no obligation to any Indemnified Party under this Section 8.08 with
respect to (i) matters for which such Indemnified Party has been reimbursed by
or on behalf of the Borrower pursuant to any other provision of this Agreement,
but only to the extent of such reimbursement, or (ii) Indemnified Matters found
by a court of competent jurisdiction to have resulted from the willful
misconduct or gross negligence of such Indemnified Party. If any action is
brought against any Indemnified Party, such Indemnified Party shall promptly
notify the
42
Borrower in writing of the institution of such action and the Borrower shall
thereupon have the right, at its option, to elect to assume the defense of such
action; provided, however, that the Borrower shall not, in assuming the defense
of any Indemnified Party in any Indemnified Matter, agree to any dismissal or
settlement of such Indemnified Matter without the prior written consent of such
Indemnified Party, which consent shall not be unreasonably withheld, if such
dismissal or settlement (A) would require any admission or acknowledgement of
culpability or wrongdoing by such Indemnified Party or (B) would provide for any
nonmonetary relief to any Person to be performed by such Indemnified Party. If
the Borrower so elects, it shall promptly assume the defense of such action,
including the employment of counsel (reasonably satisfactory to such Indemnified
Party) and payment of expenses. Such Indemnified Party shall have the right to
employ its or their own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Party unless (1) the
employment of such counsel shall have been authorized in writing by the Borrower
in connection with the defense of such action or (2) the Borrower shall not have
properly employed counsel reasonably satisfactory to such Indemnified Party to
have charge of the defense of such action, in which case such fees and expenses
shall be paid by the Borrower. If an Indemnified Party shall have reasonably
concluded (based upon the advice of counsel) that the representation by one
counsel of such Indemnified Party and the Borrower creates a conflict of
interest for such counsel, the reasonable fees and expenses of such counsel
shall be borne by the Borrower and the Borrower shall not have the right to
direct the defense of such action on behalf of such Indemnified Party (but shall
retain the right to direct the defense of such action on behalf of the
Borrower). Anything in this Section 8.08 to the contrary notwithstanding, the
Borrower shall not be liable for the fees and expenses of more than one counsel
for any Indemnified Party in any jurisdiction as to any Indemnified Matter or,
except as specified in the second sentence of this Section 8.08, for any
settlement of any Indemnified Matter effected without its written consent. All
obligations of the Borrower under this Section 8.08 shall survive the making and
repayment of the Advances and the termination of this Agreement.
SECTION 8.09. Confidentiality. Subject to the provisions of Section
---------------
8.07(f), each Lender shall, and shall instruct its Affiliates, successors,
assigns, advisors, officers, employees, directors, agents, legal counsel and
other professional advisors (the "Informed Parties") to, hold all nonpublic
information obtained pursuant to this Agreement in accordance with its customary
procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices and in any event may make
disclosure reasonably required by a bona fide transferee or participant in
connection with the contemplated transfer or participation or to another Lender
or an Informed Party agreeing to hold such nonpublic information as confidential
or as required or requested by law or to any governmental authority or
representative thereof or pursuant to legal process; provided that unless
specifically prohibited by applicable law or court order, each Lender shall
notify the Borrower of any request by any governmental authority or
representative thereof (other than any such request in connection with an
examination of the financial condition of such Lender by such governmental
authority) for disclosure of any such nonpublic information prior to disclosure
of such information; and provided further that in no event shall any Lender be
obligated or required to return any materials furnished by the Borrower.
SECTION 8.10. Consent to Jurisdiction and Service of Process. All
----------------------------------------------
judicial proceedings brought against the Borrower with respect to this Agreement
or any instrument or other documents delivered hereunder may be brought in any
state or federal court in the Borough of Manhattan in the State of New York, and
by execution and delivery of this Agreement, the Borrower accepts, for itself
and in connection with its properties, generally and unconditionally, the
nonexclusive jurisdiction of the aforesaid
43
courts, and irrevocably agrees to be bound by any final judgment rendered
thereby in connection with this Agreement or any instrument or other document
delivered hereunder from which no appeal has been taken or is available. The
Borrower agrees to receive service of process in any such proceeding in any such
court at its office at 114 Fifth Avenue, New York, New York 10011, Attention:
Kenneth E. Newman (or at such other address in the Borough of Manhattan in the
State of New York as the Borrower shall notify the Administrative Agent from
time to time) and, if the Borrower ever ceases to maintain such office in the
Borough of Manhattan, irrevocably designates and appoints CT Corporation System,
1633 Broadway, New York, New York 10019, or any other address in the State of
New York communicated by CT Corporation System to the Administrative Agent, as
its agent to receive on its behalf service of all process in any such proceeding
in any such court, such service being hereby acknowledged by the Borrower to be
effective and binding service in every respect.
SECTION 8.11. Governing Law. This Agreement shall be governed by, and
-------------
construed in accordance with, the laws of the State of New York.
SECTION 8.12. 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. A full set of executed counterparts of this Agreement shall be
lodged with the Administrative Agent and the Borrower.
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 BORROWER
------------
THE WALT DISNEY COMPANY
By: [SIGNATURE APPEARS HERE]
-----------------------------------------
Title: Vice President and Assistant Treasuer
--------------------------------------
THE ADMINISTRATIVE AGENT
------------------------
CITICORP USA, INC.,
as Administrative Agent
By: /s/ Steven R. Victorin
-----------------------------------------
Title: Attorney-in-Fact
-----------------------------------------
44
THE CO-ADMINISTRATIVE AGENTS
----------------------------
CREDIT SUISSE,
as Co-Administrative Agent
By: /s/ Stephen M. Flynn
----------------------------------------
Title: Member of Senior Management
-------------------------------------
By: /s/ David J. Worthington
----------------------------------------
Title: Member of Senior Management
-------------------------------------
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION,
as Co-Administrative Agent
By: /s/ Matthew J. Koenig
----------------------------------------
Title: Vice President
-------------------------------------
THE INITIAL LENDERS
-------------------
Commitment
----------
$86,250,000.00 CITICORP USA, INC.
By: /s/ Steven R. Victorin
----------------------------------------
Title: Attorney-in-Fact
-------------------------------------
$83,250,000.00 CREDIT SUISSE
By: /s/ Stephen M. Flynn
----------------------------------------
Title: Member of Senior Management
-------------------------------------
By: /s/ [SIGNATURE APPEARS HERE]
----------------------------------------
Title: Member of Senior Management
-------------------------------------
$83,250,000.00 BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By: /s/ Matthew J. Koenig
----------------------------------------
Title: Vice President
-------------------------------------
45
$83,250,000.00 ABN AMRO BANK N.V.,
LOS ANGELES INTERNATIONAL BRANCH
BY: ABN AMRO NORTH AMERICA, INC.,
AS AGENT
By: /s/ Paul K. Stimpfl
----------------------------------------
Title: Vice President/Director
-------------------------------------
By: /s/ Kenneth H. Bowman
----------------------------------------
Title: Vice President/Director
-------------------------------------
$83,250,000.00 BANCA COMMERCIALE ITALIANA,
LOS ANGELES FOREIGN BRANCH
By: /s/ [SIGNATURE APPEARS HERE]
----------------------------------------
Title: Vice President
-------------------------------------
By: /s/ [SIGNATURE APPEARS HERE]
----------------------------------------
Title: Vice President
-------------------------------------
$83,250,000.00 BANKERS TRUST COMPANY
By: /s/ [SIGNATURE APPEARS HERE]
----------------------------------------
Title: Vice President
-------------------------------------
$83,250,000.00 BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ Karen Klapper
----------------------------------------
Title: Director
-------------------------------------
$83,250,000.00 THE BANK OF NEW YORK
By: /s/ [SIGNATURE APPEARS HERE]
----------------------------------------
Title: Vice President
-------------------------------------
$83,250,000.00 THE BANK OF NOVA SCOTIA
By: /s/ [SIGNATURE APPEARS HERE]
----------------------------------------
Title: [TITLE APPEARS HERE]
-------------------------------------
46
$83,250,000.00 BANQUE NATIONALE DE PARIS
By: /s/ [SIGNATURE APPEARS HERE]
----------------------------------------
Title: Senior Vice President & Manager
-------------------------------------
By: /s/ [SIGNATURE APPEARS HERE]
----------------------------------------
Title: Vice President
-------------------------------------
$83,250,000.00 BANQUE PARIBAS
By: /s/ Jean-Yves Fillion /s/ Harry Collyns
----------------------------------------
Title: Vice President Vice President
-------------------------------------
$83,250,000.00 BARCLAYS BANK PLC
By: /s/ James K. Downey
----------------------------------------
Title: Associate Director
-------------------------------------
$83,250,000.00 THE CHASE MANHATTAN BANK
By: /s/ [SIGNATURE APPEARS HERE]
----------------------------------------
Title: Managing Director
-------------------------------------
$83,250,000.00 THE DAI-ICHI KANGYO BANK, LTD.,
LOS ANGELES AGENCY
By: /s/ Masatsugii Morishita
----------------------------------------
Title: Sr. Vice President & Joint General
Manager
-------------------------------------
$83,250,000.00 DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLAND BRANCHES
By: /s/ J. Scott Jessup
----------------------------------------
Title: Vice President
-------------------------------------
By: /s/ Ross A. Howard
----------------------------------------
Title: Director
-------------------------------------
47
$83,250,000.00 THE FIRST NATIONAL BANK
OF CHICAGO
By: /s/ [SIGNATURE APPEARS HERE]
----------------------------------------
Title: Senior Vice President
-------------------------------------
$83,250,000.00 FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By: /s/ Jane W. Workman
----------------------------------------
Title: Senior Vice President
-------------------------------------
$83,250,000.00 THE FUJI BANK, LTD.,
LOS ANGELES AGENCY
By: /s/ Nobuhiro Umemura
----------------------------------------
Title: Joint General Manager
-------------------------------------
$83,250,000.00 THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By: /s/ Vincente Timiraos
----------------------------------------
Title: Senior Vice President
-------------------------------------
$83,250,000.00 THE LONG-TERM CREDIT BANK
OF JAPAN, LTD., LOS ANGELES AGENCY
By: /s/ [SIGNATURE APPEARS HERE]
----------------------------------------
Title: Deputy General Manager
-------------------------------------
$83,250,000.00 THE MITSUI TRUST & BANKING CO.,
LTD.
By: /s/ Margaret Holloway
----------------------------------------
Title: Vice President & Manager
-------------------------------------
$83,250,000.00 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Diana H. Imhof
----------------------------------------
Title: Vice President
-------------------------------------
$83,250,000.00 NATIONSBANK OF TEXAS, N.A.
By: /s/ Chas A. McDonell
----------------------------------------
Title: Vice President
-------------------------------------
$83,250,000.00 ROYAL BANK OF CANADA
By: /s/ [SIGNATURE APPEARS HERE]
----------------------------------------
Title: Senior Manager
-------------------------------------
$83,250,000.00 THE SAKURA BANK, LIMITED
By: /s/ Fernando Buesa
----------------------------------------
Title: Vice President
-------------------------------------
By: /s/ [SIGNATURE APPEARS HERE]
----------------------------------------
Title: Senior Vice President
------------------------------------
Assistant General Manager
-------------------------------------
$83,250,000.00 THE SANWA BANK, LIMITED
By: /s/ [SIGNATURE APPEARS HERE]
----------------------------------------
Title: Vice President
-------------------------------------
$83,250,000.00 THE SUMITOMO BANK, LIMITED
By: /s/ [SIGNATURE APPEARS HERE]
----------------------------------------
Title:
-------------------------------------
$83,250,000.00 THE SUMITOMO TRUST & BANKING
CO., LTD., LOS ANGELES AGENCY
By: /s/ Eleanor Chan
----------------------------------------
Title: Manager & Vice President
-------------------------------------
49
$83,250,000.00 SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION
By: /s/ [SIGNATURE APPEARS HERE]
----------------------------------------
Title: First Vice President
-------------------------------------
$83,250,000.00 SWISS BANK CORPORATION,
SAN FRANCISCO BRANCH
By: /s/ Hans-Ueli Surber
----------------------------------------
Title: Executive Director Merchant Banking
-------------------------------------
By: /s/ Nang S. Peecnaphand
----------------------------------------
Title: Associate Director Accounting
-------------------------------------
$83,250,000.00 TORONTO DOMINION (TEXAS), INC.
By: /s/ Frederic Hawley
----------------------------------------
Title: Vice President
-------------------------------------
$83,250,000.00 UNION BANK OF CALIFORNIA, N.A.
By: /s/ Anna Bagdasarian
----------------------------------------
Title: Vice President/Manager
-------------------------------------
$83,250,000.00 UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By: /s/ Laurent J. Chaix
----------------------------------------
Title: Vice President
-------------------------------------
By: /s/ Stephen A. Caver
----------------------------------------
Title: Assistant Treasurer
-------------------------------------
$83,250,000.00 WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ Joel K. Wood
----------------------------------------
Title: Vice President
-------------------------------------
50
$83,250,000.00 WELLS FARGO BANK, N.A.
By: /s/ [SIGNATURE APPEARS HERE]
----------------------------------------
Title: Senior Vice President
-------------------------------------
By: /s/ [SIGNATURE APPEARS HERE]
----------------------------------------
Title: Vice President
-------------------------------------
$83,250,000.00 THE YASUDA TRUST
& BANKING CO., LTD.
By: /s/ Makoto Tagawa
----------------------------------------
Title: Deputy General Manager
-------------------------------------
$3,000,000,000 TOTAL OF COMMITMENTS
Dates Referenced Herein and Documents Incorporated by Reference
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Filing Submission 0000898430-96-005815 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
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