Document/Exhibit Description Pages Size
1: 10-K Annual Report 52 281K
2: EX-3.B Bylaws of the Company 16 55K
3: EX-4.C Amended and Restated Credit Agmnt., as of 10/3/94 44 227K
4: EX-10.L Disney Salaried Retirement Plan, Amended - 3/1/94 65 160K
5: EX-21 Subsidiaries of the Registrant 1 5K
6: EX-27 Financial Data Schedule (Pre-XBRL) 2 7K
EX-4.C — Amended and Restated Credit Agmnt., as of 10/3/94
Exhibit Table of Contents
$525,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 3, 1994
Among
THE WALT DISNEY COMPANY
AS BORROWER
and
THE FINANCIAL INSTITUTIONS NAMED HEREIN
AS LENDERS
and
CITICORP USA, INC.
AS AGENT
TABLE OF CONTENTS
SECTION PAGE
------- ----
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Certain Defined Terms 1
1.02 Computation of Time Periods 8
1.03 Accounting Terms 8
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01 The Advances 8
2.02 Making the Advances 9
2.03 Facility Fee 10
2.04 Reduction of the Commitments 10
2.05 Repayment of Advances 10
2.06 Interest on Advances 10
2.07 Additional Interest on Eurodollar Rate
Advances 10
2.08 Interest Rate Determination 11
2.09 Voluntary Conversion of Advances 11
2.10 Prepayments of Advances 12
2.11 Increased Costs 12
2.12 Illegality 13
2.13 Payments and Computations 13
2.14 Taxes 14
2.15 Sharing of Payments, Etc. 15
2.16 Mandatory Assignment by a Lender; Mitigation 16
2.17 Evidence of Debt 16
2.18 Use of Proceeds 17
2.19 Extension of Termination Date 17
2.20 Withdrawing Lenders 17
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
3.01 Conditions Precedent to Effectiveness
of this Agreement 17
3.02 Conditions Precedent to Each Borrowing 18
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01 Representations and Warranties of the
Borrower 18
4.02 Additional Representation and Warranty
of the Borrower 19
- i -
SECTION PAGE
------- ----
ARTICLE V
COVENANTS OF THE BORROWER
5.01 Affirmative Covenants 19
5.02 Negative Covenants 21
ARTICLE VI
EVENTS OF DEFAULT
6.01 Events of Default 21
ARTICLE VII
THE AGENT
7.01 Authorization and Action 22
7.02 Agent's Reliance, Etc 22
7.03 CUSA and Affiliates 23
7.04 Lender Credit Decision 23
7.05 Indemnification 23
7.06 Successor Agent 23
ARTICLE VIII
MISCELLANEOUS
8.01 Amendments, Etc. 24
8.02 Notices, Etc. 24
8.03 No Waiver; Remedies 25
8.04 Costs and Expenses 25
8.05 Right of Set-off 25
8.06 Binding Effect 25
8.07 Assignments and Participations 25
8.08 Indemnification 27
8.09 Confidentiality 28
8.10 Consent to Jurisdiction and Service of Process 28
8.11 Governing Law 28
8.12 Execution in Counterparts 28
SCHEDULES AND EXHIBITS
Schedule I - List of Applicable Lending Offices
Exhibit A - Notice of Borrowing
Exhibit B - Assignment and Acceptance
Exhibit C - Form of Opinion of Counsel for the Borrower
Exhibit D-1 - Form of Foreign Lender Certificate
Exhibit D-2 - Form of Foreign Lender Certificate
Exhibit E - Form of Withdrawal Agreement
-ii-
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF OCTOBER 3, 1994
THE WALT DISNEY COMPANY, a Delaware corporation (the "Borrower"), the
financial institutions (the "Initial Lenders") listed on the signature pages
hereof under the heading "Initial Lenders", and CITICORP USA, INC., a Delaware
corporation ("CUSA"), as agent (the "Agent") for the Lenders hereunder, agree as
follows:
PRELIMINARY STATEMENTS
The parties hereto are parties to a Credit Agreement dated as of
November 22, 1991. The parties hereto now wish to amend and restate such Credit
Agreement in its entirety as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ADVANCE" means 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.
"ANNIVERSARY DATE" means February 15, 1996 and February 15 in each
succeeding calendar year occurring during the term of this Agreement.
"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 Agent, in
substantially the form of Exhibit B hereto.
"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 as in
effect for such day; or
(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) 1/2 of one percent per annum, PLUS (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 to 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) 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, PLUS (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) for insuring U.S.
dollar deposits of Citibank in the United States; or
(c) 0.50% per annum above the Federal Funds Rate for such day.
"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.
"COMMITMENT" has the meaning specified in Section 2.01.
"CONSOLIDATED ADJUSTED INDEBTEDNESS" means, as of any date of
determination, all indebtedness of the Borrower and its subsidiaries on a
consolidated basis which would, in accordance with GAAP be classified as a
liability of the Borrower and its subsidiaries, excluding, however (i) all
deferred income taxes and unearned deposits and advances, (ii) subordinated
indebtedness represented by the Borrower's Liquid Yield Option Notes due
2005, (iii) other indebtedness of the Borrower for borrowed money which is
subordinated upon and otherwise containing terms and conditions no less
favorable to the Lenders than the provisions contained in the Borrower's
Liquid Option Yield Notes due 2005, and (iv) indebtedness for borrowed
money which is secured by any Lien upon any asset of the Borrower or its
subsidiaries which asset is not included in Consolidated Unencumbered
Assets.
"CONSOLIDATED EBIT" means, for any accounting period, 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,
PLUS 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 and (ii) consolidated income tax expense.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total interest
expense of the Borrower and its subsidiaries on a consolidated basis for
such period with respect to all outstanding Debt of the Borrower and its
subsidiaries, all as determined in conformity with GAAP.
"CONSOLIDATED UNENCUMBERED ASSETS" means, as of any date of
determination, the sum of all amounts which are, in accordance with GAAP,
included under "assets" on the consolidated balance sheet of the Borrower
and its subsidiaries, PROVIDED, HOWEVER, that such amounts shall be net of
all amounts attributable to (without duplication) (i) accumulated
depreciation, (ii) any asset or group of assets that is subject to Liens
securing obligations in aggregate amount equal to more than 33 1/3% of the
aggregate net book value of such asset or group of assets, (iii) any asset
that is included under the consolidated captions "Film Production Costs -
In process" and "Projects in Progress" (or alternative similar captions) on
the consolidated balance sheet of the Borrower and its subsidiaries, (iv)
goodwill, trademarks, tradenames, and all other similar items which are
treated as intangibles in conformity with GAAP, (v) all prepaid expenses,
deferred or capitalized costs, unamortized debt discount and progress
payments, and work in process on the date hereof, and (vi) any items not
included in clauses (ii) through (v) which are treated as intangibles in
conformity with GAAP.
"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.
2
"DEBT" means (i) indebtedness for borrowed money, (ii) obligations
evidenced by bonds, debentures, notes or other similar instruments, (iii)
obligations to pay the deferred purchase price of property or services
(other than trade payables incurred in the ordinary course of business),
(iv) obligations as lessee under leases which shall have been or should be,
in accordance with GAAP, recorded as capital leases, and (v) 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 others of the kinds referred to in clauses (i) through (iv) above.
"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 Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Agent.
"EFFECTIVE DATE" means October 3, 1994.
"ELIGIBLE ASSIGNEE" means (i) any Initial Lender or any Affiliate of
any Initial Lender and (ii) any bank or other financial institution, or any
other Person, which has been approved in writing by the Borrower and the
Agent as an Eligible Assignee for purposes of this Agreement; PROVIDED,
HOWEVER, that neither the Borrower's approval nor the Agent's approval
shall be unreasonably withheld; and PROVIDED, FURTHER, HOWEVER, that
Borrower may withhold its approval if 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
Sections 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, 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 rulings
issued thereunder.
"ERISA AFFILIATE" means any Person who 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.
"ERISA EVENT" means (a) 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; (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.
3
"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 Assignment and Acceptance pursuant
to which it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Agent.
"EURODOLLAR RATE" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same 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. The Eurodollar Rate for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks two Business Days before the
first day of such Interest Period, SUBJECT, HOWEVER, to the provisions of
Section 2.08.
"EURODOLLAR RATE ADVANCE" means an Advance which bears interest as
provided in Section 2.06(a)(ii).
"EURODOLLAR RATE MARGIN" means, for any day, the rate per annum
opposite the higher of the ratings of the Borrower's long-term public
senior debt securities as most recently announced by S&P and Moody's :
RATING RATE PER ANNUM
------------------------------------ --------------------------
S&P MOODY'S
--- -------
A+ or higher A1 or higher 0.125%
A/A- A2/A3 0.200%
BBB+/BBB Baa1/Baa2 0.250%
BBB- or lower Baa3 or lower 0.500%
or no rating or no rating
"EURODOLLAR RATE RESERVE PERCENTAGE" of any Lender for any Interest
Period for any Eurodollar Rate Advance means 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) 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 AGREEMENT" means the Credit Agreement dated as of
November 22, 1991 among the Borrower, the financial institutions party
thereto and Citicorp USA, Inc. as Agent, as amended to the date hereof.
"FACILITY FEE PERCENTAGE" means, for any day, the rate per annum
opposite the higher of the ratings of the Borrower's long-term public
senior debt securities as most recently announced by S&P and Moody's:
4
RATING RATE PER ANNUM
---------------------------------- --------------------------
S&P MOODY'S
--- -------
A+ or higher A1 or higher 0.070%
A/A- A2/A3 0.100%
BBB+/BBB Baa1/Baa2 0.150%
BBB- or lower Baa3 or lower 0.250%
or no rating or no rating
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by
the Agent.
"GAAP" means generally accepted accounting principles consistent with
those applied in the preparation of the financial statements referred to in
Section 4.01(c) dated September 30, 1993, subject, however, to the
provisions of Section 1.03.
"HAZARDOUS MATERIAL" means (i) 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; or (ii) 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 (iii) any other substance to which
exposure is regulated by any governmental activity.
"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 the date of the Conversion of any Base Rate
Advance into such a 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, twelve months as the Borrower may, upon notice
received by the 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, that if such extension would cause the last
day of such Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur on the next
preceding Business Day; and
(iii) The Borrower may not select for any Advance any Interest
Period which ends after the Termination Date.
"LENDERS" means the Initial Lenders listed on the signature pages
hereof and each Eligible Assignee that shall become a party hereto
pursuant to Section 8.07.
"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, including,
without limitation, any conditional sale or title retention agreement,
any capitalized lease, and the filing of, or agreement to give, any
financing statement under the Uniform Commercial Code or comparable
law of any jurisdiction, but excluding, however, (i) materialmen's,
suppliers', tax and other similar liens arising in the ordinary course
of business and securing obligations which are not overdue or are
being contested in good faith by appropriate proceedings, (ii) liens
arising in connection with workmen's compensation,
5
unemployment insurance, and appeal and release bonds, and (iii) liens
incurred in the ordinary course of business securing obligations or
claims aggregating at any time less than $50,000,000.
"MAJORITY LENDERS" means at any time Lenders owed at least
66 2/3% of the then aggregate unpaid principal amount of the Advances
owing to Lenders, or, if no such principal amount is then outstanding,
Lenders having at least 66 2/3% of the Commitments (PROVIDED that, for
purposes of this definition, neither the Borrower, nor any of its
Affiliates, if a Lender, shall be included in the Majority Lenders).
"MATERIAL SUBSIDIARY" means a subsidiary of the Borrower whose
total assets exceed $50,000,000.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (i) is maintained for employees
of the Borrower or any ERISA Affiliate and at least one Person other
than the Borrower and its 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.
"NOTICE OF BORROWING" has the meaning specified in Section
2.02(a).
"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.
"REFERENCE BANKS" means Bank of America NT & SA, Bankers Trust
Company, Citibank and Morgan Guaranty Trust Company of New York.
"REGISTER" has the meaning specified in Section 8.07(c).
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
"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 its 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.
"TERMINATION DATE" means, subject to Section 2.19, February 15,
2000 or the earlier date of termination in whole of the Commitments
pursuant to Section 2.04 or 6.01.
"UNITED STATES" or "U.S." each mean United States of America.
"WITHDRAWAL AGREEMENT" means an agreement in substantially the
form of Exhibit E hereto.
"WITHDRAWING LENDER" means each financial institution which was a
party to the Existing Credit Agreement immediately prior to the
effectiveness of this Agreement but is not a party to this Agreement,
as identified in Exhibit E hereto.
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".
6
SECTION 1.03. ACCOUNTING TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(c) dated September 30,
1993; PROVIDED, HOWEVER, that if any changes in accounting principles from those
used in the preparation of such financial statements hereafter occur by reason
of the promulgation of rules, regulations, pronouncements, opinions or other
requirements by 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 Borrower's option, (i) furnish to the 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(f), 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) dated September 30, 1993 or (ii) enter into
negotiations with the 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 date hereof until the
Termination Date in an aggregate amount not to exceed at any time outstanding
the amount set opposite such Lender's name on the signature pages hereof or, if
such Lender has entered into any Assignment and Acceptance, set forth for such
Lender in the Register maintained by the Agent pursuant to Section 8.07(c), as
such amount may be reduced pursuant to Section 2.04 (such Lender's
"Commitment"). Each Borrowing shall be in an aggregate amount not less than
$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
according to their respective Commitments. Within the limits of each Lender's
Commitment, the Borrower may from time to time borrow, 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 1:00 p.m. (New York City time) on the Business Day
prior to the date of a proposed Borrowing comprised of Base Rate Advances and on
the third Business Day prior to the date of a proposed Borrowing comprised of
Eurodollar Rate Advances, by the Borrower to the Agent, which shall give to each
Lender prompt notice thereof by telecopier, telex or cable. Each such notice of
a Borrowing (a "Notice of Borrowing") shall be by telecopier, telex or cable, or
by telephone, confirmed immediately by telecopier, telex or cable, in
substantially the form of Exhibit A hereto, specifying therein the requested (i)
date of such Borrowing, (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 Agent at its address referred to in Section 8.02, in same day
funds, such Lender's ratable portion of such Borrowing. After the Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Agent will make such funds available to the Borrower
at the Agent's aforesaid address.
(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.
(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.
7
(d) Unless the Agent shall have received notice from a Lender prior to the
date of any Borrowing that such Lender will not make available to the Agent such
Lender's ratable portion of such Borrowing, the Agent may assume that such
Lender has made such portion available to the Agent on the date of such
Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Agent, such Lender agrees to
pay to the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is paid to the 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 Agent, the Agent
shall notify the Borrower of such failure and (ii) if such Lender shall not pay
such corresponding amount to the Agent within two Business Days after such
demand by the Agent, the Borrower agrees to repay to the Agent forthwith, upon
demand by the 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 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 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 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 amount (whether used or unused) of such Lender's Commitment
from the Effective Date in the case of each Initial Lender and from the
effective date specified in the Assignment and Acceptance pursuant to which it
became a Lender in the case of each other Lender until 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 on
January 2, 1995, 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 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
then owing to such Lender.
SECTION 2.06. INTEREST ON ADVANCES. (a) ORDINARY 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 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 the Eurodollar Rate for such
Interest Period plus the 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 and nine months
after the first day of such Interest Period.
(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
8
date on which such amount became due and (y) 2% per annum above the Base Rate in
effect from time to time and (ii) 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 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 Agent.
SECTION 2.08. INTEREST RATE DETERMINATION. (a) Each Reference Bank agrees
to furnish to the Agent timely information for the purpose of determining each
Eurodollar Rate. If any one or more of the Reference Banks shall not furnish
such timely information to the Agent for the purpose of determining such
interest rate, the Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks.
(b) The Agent shall give prompt notice to the Borrower and the Lenders of
the applicable interest rate determined by the Agent for purposes of Section
2.06(a)(i) or (ii), and the applicable 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
Agent for determining the Eurodollar Rate for any Eurodollar Rate Advances, (i)
the 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 the 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 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 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 Agent, and the Agent shall notify the Borrower and the Lenders, that
the circumstances causing such suspension no longer exist. The Agent shall use
reasonable efforts to determine from time to time whether the circumstances
causing such suspension no longer exist and, promptly after the Agent knows that
the circumstances causing such suspension no longer exist, the 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 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.
9
SECTION 2.09. VOLUNTARY CONVERSION OF ADVANCES. The Borrower may on any
Business Day, upon notice given to the Agent not later than 1:00 P.M. (New York
City time) on the Business Day prior to the date of the proposed Conversion in
the case of a Conversion of Eurodollar Rate Advances to 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 to Eurodollar Rate Advances, and subject to the provisions of Sections
2.08 and 2.12, Convert all Advances of one Type comprising the same Borrowing
into Advances of another Type; PROVIDED, HOWEVER, that any Conversion of any
Eurodollar Rate Advances into Base Rate Advances 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 Agent shall give notice of such proposed Conversion to each Lender. Each
such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be Converted, and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the
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 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.
SECTION 2.10. PREPAYMENTS OF ADVANCES. The Borrower may, upon at least
one Business Day's notice to the Agent in the case of Borrowings consisting of
Base Rate Advances and upon at least three Business Days' notice to the Agent 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 Borrowing in whole or ratably in
part, together with accrued interest to the date of such prepayment on the
principal amount prepaid; PROVIDED, HOWEVER, that (x) each partial prepayment
shall be in an aggregate principal amount not less than $1,000,000 or an
integral multiple of $1,000,000 in excess thereof, and (y) in the case of any
such prepayment of a Eurodollar Rate Advance, the Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 8.04(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 Agent), pay to the 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 Agent by such Lender,
shall be conclusive and binding for all purposes, absent manifest error.
(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
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 Agent by
such Lender, shall be conclusive and binding for all purposes, absent manifest
error.
10
(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 12
months preceding the date of demand for payment, 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 before the date on which such Lender did notify
the Borrower of such law, regulation, guideline or request.
(d) If any Lender shall subsequently recoup 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 the amounts 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 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 Agent, and the Agent shall
notify the Borrower and the other Lenders (which notice shall be given promptly
after the 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 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 not later than 11:00 A.M. (New York City time) on the day when
due in U.S. dollars to the Agent at its address referred to in Section 8.02 in
same day funds. The Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest or facility fees ratably
(other than amounts payable pursuant to Section 2.07, 2.11 or 2.14) to the
Lenders for the account of their respective Applicable Lending Offices, and like
funds relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 8.07(d), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder 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 the Base Rate shall be made by
the Agent on the basis of a year of 365 or 366 days, as the case may be, and all
computations of interest based on the Eurodollar Rate or the Federal Funds Rate
and of facility fees shall be made by the Agent, and all computations of
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 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 shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or facility fee, as the case may be;
PROVIDED, HOWEVER, 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 next preceding Business Day.
(d) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Lenders hereunder that the Borrower
will not make such payment in full, the Agent may
11
assume that the Borrower has made such payment in full to the Agent on such date
and the Agent may, in reliance upon such assumption, cause to 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 Agent, each Lender shall repay to the Agent forthwith on demand such
amount distributed to such Lender together with interest thereon, for each day
from the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Agent, at the Federal Funds Rate.
SECTION 2.14. TAXES. (a) Any and all payments by the Borrower hereunder
shall be made, in accordance with Section 2.13, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, EXCLUDING, in
the case of each Lender and the Agent, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the laws of which such
Lender or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its
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 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 Agent, (i) the
sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.14) such Lender or the Agent (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
(hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the 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 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 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
Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
will furnish to the Agent, at its address referred to in Section 8.02, the
original or a certified copy of a receipt evidencing payment thereof.
(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 Agent, on or prior to the date of its execution and delivery of this
Agreement, or in the case of each Lender that is not a party hereto on the date
hereof, the date on which such Lender becomes a Lender pursuant to Section 8.07
hereof, 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, 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 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 8.07, as appropriate, payments hereunder without
deduction or withholding of United States federal income tax. Each Lender
further agrees to deliver to the Borrower and the Agent from time to time, as
reasonably requested by the Borrower or the 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, as applicable.
Further, each Lender which delivers Exhibit D-1 agrees, to the extent permitted
by law, to deliver to the Borrower and the Agent within 15 days prior to every
third anniversary of the date of delivery of the initial 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 Form 1001 (or any
successor or substitute form or forms required under the Code or the applicable
regulations promulgated thereunder) and such Exhibit D-1 and each Lender that
delivers such Exhibit D-2 agrees to deliver to the Borrower and the Agent,
12
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 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
(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 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
until such date that 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 or 2.14) 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 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 Agent, to the extent not inconsistent
with such Lender's internal policies, 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 but in its sole discretion, the making
or maintaining of such Eurodollar Rate Advances through such other Eurodollar
Lending Office would not otherwise materially 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)
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all, but not less than all, of the Advances then owing to such Lender and such
Lender's rights and obligations hereunder related to such Advances, 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 a proportionate
part of accrued but unpaid facility fee, expense reimbursements and indemnities
in respect of that Lender's Commitment hereunder.
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 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,
payable to the order of such Lender in a principal amount equal to the aggregate
principal amount of the Advances then owing to 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 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 the
Interest Period applicable thereto, (ii) the terms of 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 Agent from the
Borrower hereunder and each Lender's share thereof.
(c) Entries made in good faith by the 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 Agent or such Lender to make an entry, or any
finding that an entry is 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) (i) to
support the obligations of the Borrower in respect of commercial paper issued by
the Borrower and (ii) for general corporate purposes of the Borrower.
SECTION 2.19. EXTENSION OF TERMINATION DATE. (a) At least 45 but not
more than 75 days prior to the next Anniversary Date, the Borrower, by written
notice to the Agent, may request that the Termination Date be extended one
calendar year from its then current scheduled expiration. The Agent shall
promptly notify each Lender of such request, and each Lender shall in turn, not
later than 15 days prior to such next Anniversary Date, notify the Borrower and
the Agent in writing as to whether such Lender will consent to such extension.
(b) If any Lender shall fail to notify the Agent and the Borrower in
writing of its consent to such request at least 15 days prior to the next
Anniversary Date, such Lender shall be deemed to have not consented to such
request. Any nonconsenting Lender will, upon not less than three Business Days'
prior written notice by the Borrower to such Lender and the Agent, assign to an
Eligible Assignee which shall have been designated by the Borrower in such
notice and which shall have agreed to accept such assignment and to consent to
the requested extension of the Termination Date, all of such Lender's rights and
obligations hereunder, without recourse to or warranty by, or expense to, such
Lender, for a cash purchase price equal to the outstanding principal amount of
each Advance then owing to such Lender plus any accrued but unpaid interest
thereon, plus a proportionate part of any accrued but unpaid facility fee,
expense reimbursements and indemnities in respect of that Lender's Commitment
hereunder and any other amounts then due and payable to such Lender hereunder.
(c) If all of the Lenders (after giving effect to any assignments pursuant
to subsection (b) above) consent in writing to a requested extension not later
than the Business Day immediately preceding such Anniversary Date, the Agent
shall so advise the Borrower and the Lenders, the Termination Date shall be so
extended for such one calendar year, and all references herein, and in any
promissory note executed and delivered by the Borrower pursuant to Section 2.17
hereof, to the "Termination Date" shall refer to the Termination Date as so
extended. If any Lender (after giving
14
effect to any assignments pursuant to subsection (b) above) shall not so consent
in writing, such Lender shall be deemed not to have consented to such requested
extension and the Termination Date shall not be so extended.
SECTION 2.20. WITHDRAWING LENDERS. Each Initial Lender consents to the
effectiveness of the Withdrawal Agreement in accordance with the terms thereof.
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 3.01. CONDITION PRECEDENT TO EFFECTIVENESS OF THIS AGREEMENT.
This Agreement shall become effective as of the Effective Date, subject to the
satisfaction on or before such date of the following conditions precedent:
(a) the Agent shall have received the following: (i) counterparts of this
Agreement executed by the Borrower and each Lender (or, as to any of the
Lenders, advice satisfactory to the Agent that such Lenders have executed this
Agreement); (ii) certified copies of the resolutions of the Executive Committee
of the Board of Directors of the Borrower authorizing the execution and delivery
of this Agreement; (iii) 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; and (iv) an opinion of
counsel to the Borrower in substantially the form of Exhibit C hereto;
(b) the Agent shall have received counterparts of the Withdrawal Agreement
executed by the Borrower and each Withdrawing Lender;
(c) the Borrower shall have paid or prepaid any Advances outstanding on
the Effective Date under the Existing Credit Agreement, together with accrued
interest thereon and any amounts payable in connection with such prepayment
under Section 8.04(b) thereof;
(d) the Borrower shall have paid all facility fees under Section 2.03 of
the Existing Credit Agreement to the extent accrued and unpaid through the
Effective Date.
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 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, which representations
and warranties were correct in all material respects on and as of such earlier
date), and
(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.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and is duly qualified and
in good standing as a foreign corporation authorized to do business in each
jurisdiction (other than the jurisdiction of its incorporation) in which the
nature of its activities or the character of the properties it owns or leases
makes such qualification necessary and in which the failure so to qualify
15
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 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 contractual restriction
binding on or affecting the Borrower; 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; and this Agreement is the legal, valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, subject to applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws affecting creditors' rights generally and
general principles of equity.
(c) 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 prior to the
date hereof or pursuant to Section 5.01(f), 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
matters which have not, 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 its ERISA Affiliates have not incurred and are not
reasonably expected to incur any material liability in connection with their
Single Employer 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 REPRESENTATION AND WARRANTY OF THE BORROWER. The
Borrower represents and warrants solely on the date of this Agreement (and at no
subsequent time) that as of the date of this Agreement, except as disclosed in
periodic and other reports filed by the Borrower and its subsidiaries during the
period from June 30, 1994 to and including the date hereof pursuant to Section
13 of the Securities Exchange Act of 1934, as amended, copies of which have been
furnished to the Agent, there has been no material adverse change in the
business, financial condition, or operations of the Borrower since June 30,
1994.
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,
16
will by law become a Lien upon its property; PROVIDED, HOWEVER, that neither the
Borrower nor any subsidiary shall be required to pay or discharge any such tax,
assessment, charge or claim which is being contested in good faith and by proper
proceedings and as to which appropriate reserves
are being maintained as may be required by GAAP.
(c) PRESERVATION OF CORPORATE EXISTENCE, ETC. Subject to Section 5.02(a),
preserve and maintain its corporate existence, rights (charter and statutory)
and franchises; PROVIDED, HOWEVER, that the Borrower shall not be required to
preserve any right or franchise if the loss thereof does not have a material
adverse effect on the 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 a ratio of (i) Consolidated EBIT for the
period of four consecutive fiscal quarters of the Borrower ending with such
fiscal quarter to (ii) Consolidated Interest Expense for such period, of not
less than 3.0 to 1.0.
(e) MAINTENANCE OF UNENCUMBERED ASSETS COVERAGE RATIO. Maintain a ratio
of Consolidated Unencumbered Assets to Consolidated Adjusted Indebtedness of not
less than 1.3 to 1.0.
(f) REPORTING REQUIREMENTS. Furnish to the Agent, which shall furnish to
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") 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 (i) stating that no Event of Default, or event which, with
notice or lapse of time, or both, would constitute an Event of Default, has
occurred and is continuing and (ii) containing a schedule which shall set
forth the computations used by the Borrower in determining compliance with
the covenants contained in Sections 5.01(d) and 5.01(e);
(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,
containing consolidated financial statements 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 (i) stating that no Event of default, or event which, with
notice or lapse of time, or both, would constitute an Event of Default, has
occurred and is continuing and (ii) containing a schedule which shall set
forth the computations used by the Borrower in determining compliance with
the covenants contained in Sections 5.01(d) and 5.01(e);
(iii) promptly after the Borrower obtains actual knowledge of the
occurrence of each Event of Default, and each event which with the giving
of notice or lapse 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 subsidiary 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 adversely affect the
financial condition or operations of the Borrower and its subsidiaries
taken as a whole;
(vi) promptly after the Borrower obtains actual knowledge of the
occurrence of any ERISA Event which could reasonably be expected to
materially 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
17
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 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 clause (A) or (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 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 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 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 in an
agreement or instrument reasonably satisfactory in form and substance to the
Majority Lenders.
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) or Section 5.01(e) or Section 5.01(f)(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 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 $100,000,000 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
18
(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 of its Material Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its inability
to pay its debts generally, or shall make a general assignment for the benefit
of creditors; or any proceeding shall be instituted by or against the Borrower
or any of its Material Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for substantially all of
its property and, in the case of any such proceeding instituted against it (but
not instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 60 days, or 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 of its Material Subsidiaries 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 of its Material Subsidiaries or any of their
respective assets involving in any case an amount in excess of $50,000,000 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 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 AGENT
SECTION 7.01. AUTHORIZATION AND ACTION. Each Lender hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the 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
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; PROVIDED,
HOWEVER, that the Agent shall not be required to take any action which exposes
the Agent to personal liability or which is contrary to this Agreement or
applicable law. The Agent agrees to give to each Lender prompt notice of each
notice given to it by the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. AGENT'S RELIANCE ETC. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable 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 Agent:
(i) may treat the Lender which made any Advance as the holder of the Debt
resulting therefrom until the Agent receives and accepts 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
19
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, cable 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, 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 Agent; and the term "Lender" or "Lenders" shall, unless otherwise expressly
indicated, include CUSA in its individual capacity. CUSA and its Affiliates may
accept deposits from, lend money to, act as trustee under indentures of, 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 were not the Agent and without
any duty to account therefor to the Lenders.
SECTION 7.04. LENDER CREDIT DECISION. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Section 4.01(c) and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. INDEMNIFICATION. The Lenders agree to indemnify the Agent
(to the extent not reimbursed by the Borrower), ratably according to the
respective principal amounts of 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 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 Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this Agreement,
PROVIDED that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including reasonable counsel fees) incurred by the 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 Agent is not
reimbursed for such expenses by the Borrower.
SECTION 7.06. SUCCESSOR AGENT. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower and such resignation
shall be effective upon the appointment of a successor Agent as provided herein.
Upon any such resignation, the Majority Lenders shall have the right to appoint
a successor Agent. If no successor Agent shall have been so appointed by the
Majority Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation, then the retiring Agent
may, on behalf of the Lenders, appoint a successor Agent. Any successor 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 such bank,
having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
20
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, 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 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 on, the Advances, (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 Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Agent under this Agreement.
SECTION 8.02. NOTICES, ETC. All notices and other communications provided
for hereunder shall be in writing (including telecopier, telegraphic, telex or
cable communication) and mailed, telecopied, telegraphed, telexed, cabled or
delivered, if to the Borrower, at its address at:
The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521
Attention: Mr. Edward Philip
Telecopy Number: (818) 563-1682
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 Assignment and Acceptance pursuant to which it became a
Lender; if to the Agent, at its address at:
Citicorp USA, Inc.
One Court Square
Long Island City, New York 11120
Attention: Jeff Stern
Telecopy Number: (718) 248-4844
with a copy to:
Citicorp Securities, Inc.
One Sansome Street
San Francisco, CA 94104
Attention: Mark Wilson
Telecopy Number: (415) 433-0344
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, telexed or cabled, be effective
when deposited in the mails, telecopied, delivered to the telegraph company,
confirmed by telex answerback or delivered to the cable company, respectively,
except that notices and communications to the Agent pursuant to Article II or
VII shall not be effective until received by the Agent.
SECTION 8.03. NO WAIVER; REMEDIES. No failure on the part of any Lender
or the Agent to exercise, and no delay in exercising, any right hereunder 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 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).
21
(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
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 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 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 under this Agreement. Each Lender agrees
promptly to notify the Borrower after any such set-off and application made by
such Lender, PROVIDED that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender 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 in
accordance with the provisions of Section 3.01, and thereafter shall be binding
upon and inure to the benefit of the Borrower, the 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 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 and the Advances owing to 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 amount of the Commitment of the
assigning Lender being assigned pursuant to each such assignment (determined as
of the date of the Assignment and Acceptance with respect to such assignment)
shall in no event be less than $5,000,000, (iii) each such assignment shall be
to an Eligible Assignee, and (iv) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with a processing and
recordation fee of $2,000. 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 2.14 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).
(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 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) and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this
22
Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
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 Agent shall maintain at its address referred to in Section 8.02 a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Advances owing to, each Lender from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower, the Agent
and the Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
the 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 to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the Borrower, the Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and (iv) such Lender shall not agree in any
participation agreement with any participant 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, consenting to any action or
failure to act by the Borrower or any other party, or exercising any rights it
may have in respect thereof, unless such amendment, modification, waiver,
consent or exercise would (i) increase the amount of such participant's portion
of such Lender's Commitment, (ii) 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 (iii) 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 payable under this 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.
(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 promissory notes or other evidences of indebtedness issued to such
Lender 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) and the applicable operating circular of such Federal
Reserve Bank.
SECTION 8.08. INDEMNIFICATION. The Borrower agrees to indemnify and hold
harmless the 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
23
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 compensated pursuant to any other
provision of this Agreement or (ii) Indemnified Matters caused by or resulting
from the intentional wrongful act or gross negligence of such Indemnified Party.
If any action is brought against any Indemnified Party, such Indemnified Party
shall promptly notify the 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. 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 (i) the employment of such counsel
shall have been authorized in writing by the Borrower in connection with the
defense of such action or (ii) 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 such Indemnified Party shall have reasonably concluded (based
upon the advice of counsel) that the representation by one counsel of the
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 the 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 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 or
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 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 FURTHER, PROVIDED, 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 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 500 Park Avenue, New
York, New York 10022 (or at such other address in the Borough of Manhattan in
the State of New York as the Borrower shall notify the 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 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.
24
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 WALT DISNEY COMPANY
By: /s/ STEVEN J. SCHOCH
-----------------------
Title: Vice President
CITICORP USA, INC., as Agent
By: /s/ BARBARA A. COHEN
-----------------------
Title: Vice President
[Download Table]
COMMITMENT LENDERS
---------- -------
$17,500,000 ABN AMRO BANK, N.V.
By: /s/ PAUL K. STIMPHL
-----------------------
Title: Vice President
By: /s/ DAVID A. STASSEL
-----------------------
Title: Vice President
$17,500,000 BANK OF AMERICA NT & SA
By: /s/ MATTHEW J. KOENIG
-----------------------
Title: Vice President
$17,500,000 THE BANK OF CALIFORNIA, N.A.
By: /s/ ANNA BADGASARIAN
-----------------------
Title: Vice President/Manager
$17,500,000 BANKERS TRUST COMPANY
By: /s/ KATHERINE A. JUDGE
-----------------------
Title: Vice President
$17,500,000 BANQUE NATIONALE DE PARIS
By: /s/ CHRISTIAN MORIO
-----------------------
Title: Senior Vice President and Manager
By: /s/ JANICE S.H. HO
-----------------------
Title: Vice President
$17,500,000 BARCLAYS BANK PLC
By: /s/ JOHN B. ALT
-----------------------
Title: Associate Director
25
$17,500,000 CHEMICAL BANK
By: /s/ J. HOWE
-----------------------
Title: Vice President
$17,500,000 CITICORP USA, INC.
By: /s/ BARBARA A. COHEN
-----------------------
Title: Vice President
$17,500,000 CREDIT SUISSE
By: /s/ DAVID J. WORTHINGTON
-----------------------
Title: Member of Senior Management
By: /s/ STEPHEN M. FLYNN
-----------------------
Title: Member of Senior Management
$17,500,000 THE DAI-ICHI KANGYO BANK, LTD.
LOS ANGELES AGENCY
By: /s/ TOMOHIRO NOZAKI
-----------------------
Title: Senior Vice President & Joint General
Manager
$17,500,000 DEUTSCHE BANK AG
LOS ANGELES AND CAYMAN ISLAND BRANCHES
By: /s/ STEVEN N. WARDEN
-------------------------
Title: Director
By: /s/ J. SCOTT JESSUP
-----------------------
Title: Vice President
$17,500,000 THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ L. GENE BEUBE
------------------------
Title: Senior Vice President
$17,500,000 FIRST INTERSTATE BANK OF CALIFORNIA
By: /s/ GREGORY P. BROWN
Title: Vice President
By: /s/ DANIEL H. HOM
-----------------------
Title: Vice President
$17,500,000 THE FUJI BANK LIMITED
LOS ANGELES AGENCY
By: /s/ YASUJI IKAWA
-------------------------
Title: Joint General Manager
$17,500,000 THE INDUSTRIAL BANK OF JAPAN, LIMITED LOS ANGELES
AGENCY
By: /s/ KAZUTAKA KIYOTO
-----------------------
Title: Senior Vice President and Senior Manager
26
$17,500,000 THE LONG-TERM CREDIT BANK OF JAPAN, LTD. LOS
ANGELES AGENCY
By: /s/ CURT M. BIREN
-----------------------
Title: Vice President
$17,500,000 MELLON BANK, N.A.
By: /s/ G. LOUIS ASHLEY
-----------------------
Title: First Vice President-Manager-Media Section
$17,500,000 THE MITSUBISHI TRUST AND BANKING CORPORATION
By: /s/ TAKASHI SUGITA
-----------------------
Title: Senior Vice President and Chief Manager
$17,500,000 THE MITSUI TRUST & BANKING CO., LTD.
By: /s/ KEN TAKAHASHI
-----------------------
Title: General Manager and Agent
$17,500,000 MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/ DIANA H. IMHOF
-----------------------
Title: Associate
$17,500,000 NATIONAL WESTMINSTER BANK PLC
By: /s/ HAL SADOFF
-----------------------
Title: Vice President
$17,500,000 NATIONSBANK OF TEXAS, N.A.
By: /s/ MICHELLE M. SHAFROTH
-----------------------
Title: Senior Vice President
$17,500,000 THE SAKURA BANK, LTD.
LOS ANGELES AGENCY
By: /s/ FERNANDO BUESA
-----------------------
Title: Vice President
By: /s/ OFUSA SATO
-----------------------
Title: Senior Vice President & Assistant General
Manager
$17,500,000 SOCIETE GENERALE
By: /s/ MAUREEN KELLY
-----------------------
Title: Vice President
$17,500,000 THE SUMITOMO BANK, LIMITED
By: /s/ HIROSHI AMANO
-----------------------
Title: General Manager
$17,500,000 THE SUMITOMO TRUST & BANKING CO., LTD. LOS ANGELES
AGENCY
By: /s/ MASAYUKI IMANAKA
-----------------------
Title: Senior Manager
$17,500,000 SUNBANK, NATIONAL ASSOCIATION
By: /s/ LORRAINE D. MCCULLERS
-----------------------
Title: Vice President-National Banking
27
$17,500,000 SWISS BANK CORPORATION
SAN FRANCISCO BRANCH
By: /s/ DAVID L. PARROT
-----------------------
Title: Associate Director-Merchant Banking
By: /s/ HANS-UELI SURBER
-----------------------
Title: Executive Director-Merchant Banking
$17,500,000 TORONTO DOMINION (TEXAS), INC.
By: /s/ WARREN FINLAY
-----------------------
Title: Vice President
$17,500,000 THE YASUDA TRUST & BANKING CO., LTD.
LOS ANGELES BRANCH
By: /s/ KIYOSHI TERAO
-----------------------
Title: Joint General Manager
$525,000,000
28
SCHEDULE I
The Walt Disney Company
$525,000,000 Credit Agreement
[Enlarge/Download Table]
DOMESTIC EURODOLLAR
-------- ----------
NAME OF BANK LENDING OFFICE LENDING OFFICE
------------ -------------- --------------
ABN AMR0 Bank, N.V. ABN AMR0 Bank, N.V. ABN AMR0 Bank, N.V.
Los Angeles/Int'l Branch Los Angeles/Int'l Branch
300 S. Grand Ave., #1115 300 S. Grand Ave., #1115
Los Angeles, CA 90071 Los Angeles, CA 90071
Bank of America Bank of America, NT & SA Bank of America, NT & SA
NT & SA PSO Acct. Admin. #5693 PSO Acct. Admin. #5693
1850 Gateway Bl., 4th fl. 1850 Gateway Bl., 4th Fl.
Concord, CA 94520 Concord, CA 94520
The Bank of California, N.A. The Bank of California, N.A. The Bank of California, N.A.
550 S. Hope St., 5th Fl. 550 S. Hope St., 5th Fl.
Los Angeles, CA 90071 Los Angeles, CA 90071
Bankers Trust Bankers Trust Company Bankers Trust Company
Company 1 Bankers Trust Plaza 1 Bankers Trust Plaza
New York, NY 10006 New York, NY 10006
Banque Nationale de Banque Nationale de Paris Banque Nationale de Paris
Paris 725 S. Figueroa, #2090 725 S. Figueroa, #2090
Los Angeles, CA 90017 Los Angeles, CA 90017
Barclays Bank PLC Barclays Bank PLC Barclays Bank PLC
New York, NY Nassau, Bahamas
Chemical Bank Chemical Bank Chemical Bank
52 Broadway 52 Broadway
New York, NY 10015 New York, NY 10015
Attn: Loan Services Dept. Attn: Loan Services Dept.
Pedro Valentin, A.T. Pedro Valentin, A.T.
Citicorp USA, Inc. Citicorp USA, Inc. Citicorp USA, Inc.
399 Park Avenue 399 Park Avenue
New York, New York 10043 New York, NY 10043
Credit Suisse Credit Suisse Credit Suisse
800 Wilshire Bl., 8th Fl. 800 Wilshire Bl., 8th Fl.
Los Angeles, CA 90017 Los Angeles, CA 90017
Deutsche Bank AG Deutsche Bank AG Deutsche Bank AG
300 S. Grand Avenue Cayman Islands Branch
Los Angeles, CA 90071 c/o New York Branch
31 W. 52nd St.
New York, NY 10019
The Dai-Ichi Kangyo The Dai-Ichi Kangyo Bank, The Dai-Ichi Kangyo Bank,
Bank, Ltd. Ltd., Los Angeles Agency Ltd., Los Angeles Agency
Los Angeles Agency 555 W. 5th Street, 5th Floor 555 W. 5th Street, 5th Floor
Los Angeles, CA 90013 Los Angeles, CA 90013
29
DOMESTIC EURODOLLAR
-------- ----------
NAME OF BANK LENDING OFFICE LENDING OFFICE
------------ -------------- --------------
The First National The First National Bank The First National Bank
Bank of Chicago of Chicago of Chicago
One First National Plaza One First National Plaza
Suite 0324 Suite 0324
Chicago, Illinois 60670 Chicago, Illinois 60670
First Interstate Bank First Interstate Bank of First Interstate Bank of
of California California California
1200 W. 7th Street 1200 W. 7th Street
Los Angeles, CA 90017 Los Angeles, CA 90017
The Fuji Bank, Limited, The Fuji Bank, Limited The Fuji Bank, Limited
Los Angeles Agency Los Angeles Agency Los Angeles Agency
333 South Grand Avenue 333 South Grand Avenue
Suite 2500 Suite 2500
Los Angeles, CA 90071 Los Angeles, CA 90071
The Industrial Bank of The Industrial Bank of The Industrial Bank of
Japan, Limited Japan, Limited Japan, Limited
Los Angeles Agency Los Angeles Agency Los Angeles Agency
350 South Grand Avenue 350 South Grand Avenue
Suite 1500 Suite 1500
Los Angeles, CA 90071 Los Angeles, CA 90071
The Long-Term Credit The Long Term Credit The Long Term Credit
Bank of Japan, Ltd. Bank of Japan, Ltd. Bank of Japan, Ltd.
Los Angeles Agency Los Angeles Agency Los Angeles Agency
444 S. Flower St., #3700 444 S. Flower St., #3700
Los Angeles, CA 90071 Los Angeles, CA 90071
Mellon Bank, N.A. Mellon Bank, N.A. Mellon Bank, N.A.
Mellon Bank Center 1 Mellon Bank Center
Pittsburgh, PA 15258 Pittsburgh, PA 15258
The Mitsubishi Trust The Mitsubishi Trust The Mitsubishi Trust
and Banking Corporation and Banking Corporation and Banking Corporation
911 Wilshire BI., #1650 911 Wilshire BI., #165
Los Angeles, CA 90017 Los Angeles, CA 90017
The Mitsui Trust & The Mitsui Trust & The Mitsui Trust &
Banking Co., Ltd. Banking Co., Ltd. Banking Co., Ltd.
611 West 6th Street 611 West 6th Street
Los Angeles, CA 90017 Los Angeles, CA 90017
Morgan Guaranty Trust Morgan Guaranty Trust Morgan Guaranty Trust
Company of New York Company of New York Company of New York
60 Wall Street Nassau, Bahamas Office
New York, NY 10260-0060 c/o J.P. Morgan
Attention: Loan Department
Services, Inc.
Euro-Loan Servicing
902 Market Street
Wilmington, DE 19801
National Westminster Bank, PLC National Westminster Bank, PLC National Westminster Bank, PLC
New York Branch Nassau Branch
175 Water Street, 19th Floor c/o 175 Water Street, 19th Fl.
New York, NY 10038 New York, NY 10038
NationsBank of Texas, N.A NationsBank of Texas, N.A. NationsBank of Texas, N.A.
901 Main Street, 11th Fl. 901 Main Street, 11th
Dallas, Texas 75206 Dallas, Texas 75206
Attn: Commercial Loans Attn: Commercial Loans
30
DOMESTIC EURODOLLAR
-------- ----------
NAME OF BANK LENDING OFFICE LENDING OFFICE
------------ -------------- --------------
The Sakura Bank, Ltd. The Sakura Bank, Ltd. The Sakura Bank, Ltd.
Los Angeles Agency Los Angeles Agency
515 S. Figueroa Street 515 S. Figueroa Street
Suite 400 Suite 400
Los Angeles, CA 90071 Los Angeles, CA 90071
Societe Generale Societe Generale Societe Generale
2029 Century Park East 2029 Century Park East
Suite 2900 Suite 2900
Los Angeles, CA 90067 Los Angeles, CA 90067
The Sumitomo Bank, The Sumitomo Bank, The Sumitomo Bank,
Limited Limited Limited
611 West 6th Street 611 West 6th Street
Los Angeles, CA 90017 Los Angeles, CA 90017
The Sumitomo Trust & The Sumitomo Trust & The Sumitomo Trust &
Banking Co., Ltd. Banking Co., Ltd. Banking Co., Ltd.
Los Angeles Agency Los Angeles Agency Los Angeles Agency
333 S. Grand Av., #5300 333 S. Grand Av. #5300
Los Angeles, CA 90071 Los Angeles, CA 90071
Sunbank, National Sunbank, National Sunbank, National
Association Association Association
P.0. Box 3833 P.0. Box 3833
200 S. Orange Avenue 200 S. Orange Avenue
Orlando, FL 32802 Orlando, FL 32802
Swiss Bank Corporation Swiss Bank Corporation Swiss Bank Corporation
San Francisco Branch San Francisco Branch San Francisco Branch
101 California Street 101 California Street
Suite 1700 Suite 1700
San Francisco, CA 94111 San Francisco, CA 94111
Toronto Dominion (Texas), Inc. Toronto Dominion (Texas), Inc. Toronto Dominion (Texas), Inc.
909 Fannin, Suite 1700 909 Fannin, Suite 1700
Houston, TX 77010 Houston, TX 77010
The Yasuda Trust & Banking Co., The Yasuda Trust & Banking Co., The Yasuda Trust & Banking Co., Ltd.
Ltd. Los Angeles Branch Los Angeles Branch
Los Angeles Branch Ltd. 725 S. Figueroa Street 725 S. Figueroa Street
Suite 3990 Suite 3990
Los Angeles, CA 90017 Los Angeles, CA 90017
31
EXHIBIT A
NOTICE OF BORROWING
[Date]
Citicorp USA, Inc., as Agent
for the Lenders party to the
Amended and Restated Credit Agreement referred to below
399 Park Avenue
New York, New York 10043
Attention: ___________________
Ladies and Gentlemen:
The undersigned, The Walt Disney Company, refers to the Amended and Restated
Credit Agreement, dated as of October 3, 1994 (said Agreement as it may be
amended, modified or supplemented from time to time, being the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among the undersigned, the financial institutions party thereto as Lenders and
Citicorp USA, Inc., as Agent for such Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is _____________
19___.
(ii) The Type of Advances comprising the Proposed Borrowing is [Base
Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is $___________.
*[(iv) The initial Interest Period for each Advance made as part of the
Proposed Borrowing is [one] [two] [three] [six] [twelve] months.]
The undersigned hereby certifies that, pursuant to Section 3.02 of the
Credit Agreement, each of the following statements is true, and will be true on
the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01 of the
Credit Agreement are correct in all material respects on and as of the date of
the Proposed Borrowing, before and after giving effect to the Proposed
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), which representations and warranties were
correct in all material respects on and as of such earlier date); and
(B) no event has occurred and is continuing, or would result from such
Proposed 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.
Very truly yours,
THE WALT DISNEY COMPANY
By
Title:
* To be included for a Proposed Borrowing comprised of Eurodollar Rate
Advances.
32
EXHIBIT B
ASSIGNMENT AND ACCEPTANCE
Dated __________________________, 19
Reference is made to the Amended and Restated Credit Agreement dated as of
October 3, 1994 (said Agreement as it may be amended, modified or supplemented
from time to time, being the "Credit Agreement") among The Walt Disney Company,
a Delaware corporation (the "Borrower"), the financial institutions party
thereto as Lenders, and Citicorp USA, Inc., as Agent for the Lenders (the
"Agent"). Terms defined in the Credit Agreement are used herein with the same
meanings.
_______________________ (the "Assignor") and __________________________
(the "Assignee") agree as follows:
tabs
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, that interest in and to all of
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof which represents the percentage interest specified on Schedule 1 of all
outstanding rights and obligations under the Credit Agreement (including,
without limitation, such interest in the Assignor's Commitment and the Advances
owing to the Assignor). After giving effect to such sale and assignment, the
Assignee's Commitment and the amount of the Advances owing to the Assignee will
be as set forth in Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any instrument or document furnished
pursuant thereto; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition or operations of the
Borrower or the performance or observance by the Borrower of any of its
obligations under the Credit Agreement or any instrument or document furnished
pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01(c) thereof, and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under the Credit Agreement as are delegated to the Agent
by the terms thereof, together with such powers as are reasonably incidental
thereto; (v) agrees that it will perform in accordance with their terms all of
the obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender; (vi) specifies as its Domestic Lending Office (and
address for notices) and Eurodollar Lending Office the offices set forth beneath
its name on the signature pages hereof; and (vii) if the Assignee is not created
or organized under the laws of the United States or a political subdivision
thereof, attaches hereto the certificates and forms required under Section
2.14(e) of the Credit Agreement and represents that the information contained
therein is accurate and complete.
4. Following the execution of this Assignment and Acceptance by the Assignor
and the Assignee, it will be delivered to the Agent for acceptance and recording
by the Agent. The effective date of this Assignment and Acceptance shall be the
date of acceptance thereof by the Agent, unless otherwise specified on Schedule
l hereto (the "Effective Date").
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights (other than
any rights the Assignor may have under Sections 2.14 and 8.08 of the Credit
Agreement) and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and facility fees with respect thereto) to the
Assignee. The Assignor
33
and Assignee shall make all appropriate adjustments in payments under the Credit
Agreement for periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the Assignor and Assignee have caused this Assignment
and Acceptance to be executed by the respective officers thereunto duly
authorized, as of the date first above written.
[NAME OF ASSIGNOR]
By:
Title:
[NAME OF ASSIGNEE]
By:
Title:
Domestic Lending Office
address for notices):
------------------------------
Eurodollar Lending Office
------------------------------
Accepted this ____ day
of ______________, 19
CITICORP USA, INC.,
as Agent
By:
Title:
34
Schedule 1
to Assignment and Acceptance
Dated _____________, 19___ between
________________________, as Assignor, and
________________________, as Assignee
SECTION 1.
Percentage Interest
assigned: __________%
SECTION 2.
Assignee's Commitment: $__________
Aggregate Outstanding Principal
Amount of Advances owing to the
Assignee $__________
SECTION 3.
Effective Date*: ________________, 19___
* This date should be no earlier than the date of acceptance by the
Agent.
35
EXHIBIT C
FORM OF OPINION OF
COUNSEL TO THE BORROWER
October 3, 1994
To each of the Lenders as defined in and party to the
Amended and Restated Credit Agreement referred to
below and to Citicorp USA, Inc., as Agent
c/o Citicorp USA, Inc.
399 Park Avenue
New York, New York 10043
Re: The Walt Disney Company
-----------------------
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(a)(iv) of the
Amended and Restated Credit Agreement dated as of October 3, 1994 (the "Credit
Agreement") among The Walt Disney Company (the "Borrower"), the Lenders party
thereto, and Citicorp USA, Inc., as Agent for such Lenders. Terms defined in
the Credit Agreement and not otherwise defined herein are used herein as therein
defined.
I am Vice President - Assistant General Counsel to the Borrower and in that
capacity I have acted as counsel for the Borrower in connection with the
preparation, execution and delivery of the Credit Agreement.
In that connection, I have examined the Credit Agreement, the documents
furnished by the Borrower pursuant to Section 3.01(a) of the Credit Agreement,
the Certificate of Incorporation of the Borrower and all amendments thereto (the
"Charter"), and the by-laws of the Borrower and all amendments thereto (the "By-
laws"). In addition, I have examined the originals, or copies certified to my
satisfaction, of such other corporate records of the Borrower, certificates of
public officials and of officers of the Borrower, and agreements, instruments
and other documents, as I have deemed necessary as a basis for the opinions
expressed below. As to questions of fact material to such opinions, I have,
when relevant facts were not independently established by me, relied upon
certificates of the Borrower or its officers or of public officials. I have
assumed the due execution and delivery, pursuant to due authorization, of the
Credit Agreement by the Lenders and the Agent.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. The Borrower is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and is duly qualified and
in good standing as a foreign corporation authorized to do business in each
jurisdiction (other than the jurisdiction of its incorporation) in which the
nature of its activities or the character of the properties it owns or leases
makes such qualification necessary and in which the failure to so qualify would
have a material adverse effect on the financial condition or operations of the
Borrower and its subsidiaries taken as a whole.
2. The execution, delivery and performance by the Borrower of the Credit
Agreement are within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, and do not contravene (i) the Charter or the
By-laws or (ii) any applicable law, rule or regulation or (iii) to the best of
my knowledge, any contractual or legal restriction contained in any agreement or
instrument, or any order, judgment or decree, binding on or affecting the
Borrower. The Credit Agreement has been duly executed and delivered on behalf
of the Borrower.
3. 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 the Credit Agreement.
4. The Credit Agreement is the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its terms.
The opinions set forth in paragraph 4 above are subject to the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally and to the effect of general principles of
equity, including (without limitation) concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether considered in a proceeding in
equity or at law).
36
My opinions expressed above are limited to the law of the State of New York
and the Federal law of the United States, and I do not express any opinion
herein concerning any other law. Without limiting the generality of the
foregoing, I express no opinion as to the effect of the law of any jurisdiction
other than the State of New York, wherein any Lender may be located or wherein
enforcement of the Credit Agreement may be sought which limits the rates of
interest legally chargeable or collectible. This opinion is rendered to you in
connection with the execution and delivery of the Credit Agreement; this opinion
is solely for your benefit and is not to be used, circulated, quoted or
otherwise referred to for any other purpose without, in each instance, my prior
written consent.
Very truly yours,
37
EXHIBIT D-1
FORM OF
FOREIGN LENDER CERTIFICATE
To: The Walt Disney Company
Reference is made to the Amended and Restated Credit Agreement, dated as of
October 3, 1994 (said Agreement, as it may be amended, supplemented or otherwise
modified from time to time being the "Credit Agreement"), among The Walt Disney
Company, as Borrower (the "Borrower"), the financial institutions from time to
time party thereto as Lenders (the "Lenders") and Citicorp USA, Inc., as agent
for the Lenders (the "Agent"). Terms defined in the Credit Agreement and not
otherwise defined herein are used herein as therein defined.
Pursuant to Section 2.14(e) of the Credit Agreement, the undersigned Lender
hereby certifies to the Borrower and the Agent that under the provisions of the
income tax convention between the United States and [Name of Country] the
undersigned Lender
* [is eligible to receive payments under the Credit Agreement without
deduction or withholding of the United States federal income tax]
* [is not eligible to receive payments under the Credit Agreement without
deduction or withholding of United States federal income tax but does not
require additional payments therefor pursuant to Section 2.14(a) or (c) of the
Credit Agreement 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]
* [is not eligible to receive payments under the Agreement without
deduction or withholding of United States federal income tax and is not eligible
and able to recover the full amount of the same from a source other than the
Borrower.]
The undersigned Lender is a corporation organized under the laws of [Name
of Country] and [is not acting through a branch, agency or office in the United
States] [has a branch, agency or office in the United States but its activities
in connection with the Credit Agreement are not connected effectively with such
branch, agency, or office.]
Accompanying this Certificate are two copies of Form 1001 (or any successor
or substitute form) of the United States Internal Revenue Service, properly
completed and duly executed by an appropriate representative of the undersigned
Lender.
Dated: _____________, 19
[NAME OF LENDER]
By:
------------------
Title:
---------------
* Insert applicable statement.
38
EXHIBIT D-2
FORM OF
FOREIGN LENDER CERTIFICATE
To: The Walt Disney Company
Reference is made to the Amended and Restated Credit Agreement, dated as of
October 3, 1994 (said Agreement, as it may be amended, supplemented or otherwise
modified from time to time, being the "Credit Agreement"), among The Walt Disney
Company, as Borrower (the "Borrower"), the financial institutions from time to
time party thereto as Lenders (the "Lenders") and Citicorp USA, Inc., as agent
for the Lenders (the "Agent"). Terms defined in the Credit Agreement and not
otherwise defined herein are used herein as therein defined.
Pursuant to Section 2.14(e) of the Credit Agreement, the undersigned Lender
hereby certifies to the Borrower and the Agent that under the provisions of
Sections 1441(c) or 1442 of the Internal Revenue Code of 1986 of the United
States, as amended, and Treasury Regulation Section 1.1441-4, as amended, the
undersigned Lender
* [is eligible to receive payments under the Credit Agreement without
deduction or withholding of the United States federal income tax.]
* [is not eligible to receive payments under the Credit Agreement 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) of the Credit Agreement 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]
* [is not eligible to receive payments under the Credit Agreement without
deduction or withholding of United States federal income tax and is not eligible
and able to recover the full amount of the same from a source other than the
Borrower.]
The undersigned Lender is a corporation organized under the laws of [Name
of Country] and is acting through a branch, agency or office operating in the
United States in respect of the Credit Agreement and any payment received or to
be received by it in connection with the Credit Agreement is effectively
connected with its conduct of a trade or business in the United States.
Accompanying this Certificate are two copies of Form 4224 (or any successor
or substitute form) of the United States Internal Revenue Service, properly
completed and duly executed by an appropriate representative of the undersigned
Lender.
Dated: ,19
----------------
[NAME OF LENDER]
By:
-------------------
Title:
-----------------
* Insert applicable statement.
39
EXHIBIT E
FORM OF
WITHDRAWAL AGREEMENT
This Agreement is executed by THE BANK OF NOVA SCOTIA, BANQUE INDOSUEZ and
BANK OF AMERICA, ILLINOIS (formerly known as CONTINENTAL BANK N.A.) (each a
"Withdrawing Lender"), THE WALT DISNEY COMPANY (the "Borrower") and CITICORP
USA, INC., as Agent for the financial institutions party to the Existing Credit
Agreement referred to below (in such capacity, the "Agent").
PRELIMINARY STATEMENTS. The Borrower, the Withdrawing Lenders, certain
other financial institutions and the Agent are parties to a Credit Agreement
dated as of November 22, 1991 (as amended, the "Existing Credit Agreement").
The parties hereto wish to terminate the Commitments of the Withdrawing Lenders
as hereinafter set forth in connection with the effectiveness of that certain
Amended and Restated Credit Agreement dated as of October 3, 1994 (the "Amended
and Restated Credit Agreement") among the Borrower, the financial institutions
party thereto and Citicorp USA, Inc. as Agent for such financial institutions.
Terms defined in the Existing Credit Agreement are used in this Agreement as
defined in the Existing Credit Agreement and, except as otherwise indicated, all
references to Sections and Articles refer to the corresponding Sections and
Articles of the Existing Credit Agreement.
The parties hereto therefore agree as follows:
SECTION 1. TERMINATION OF COMMITMENTS OF THE WITHDRAWING LENDERS.
Effective on the Agreement Effective Date (as defined in Section 2 hereof) and
subject to the satisfaction of the conditions precedent set forth in Section 2
hereof, the Commitment of each Withdrawing Lender is reduced to zero, and each
Withdrawing Lender shall relinquish its rights and be released from its
obligations under the Existing Credit Agreement and shall cease to be a party
thereto, PROVIDED that each Withdrawing Lender shall continue to enjoy the
benefits of Sections 2.14 and 8.08 with respect to any period ending on or prior
to the Agreement Effective Date.
SECTION 2. CONDITIONS TO EFFECTIVENESS. This Agreement shall be effective
as of October 3, 1994 (the "Agreement Effective Date") subject to the
satisfaction of the following conditions precedent:
(a) the Borrower shall have paid all facility fees under Section 2.03 to
the extent accrued and unpaid through the Agreement Effective Date;
(b) the Borrower shall have paid or prepaid any Advances outstanding on
the Agreement Effective Date, together with accrued interest thereon and any
amounts payable in connection with such prepayment under Section 8.04(b); and
(c) all other conditions to the effectiveness of the Amended and Restated
Credit Agreement (except for the condition under Section 3.01(b)) shall have
been satisfied or waived.
SECTION 3. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by any combination of the parties hereto in
separate counterparts, each of which counterparts shall be an original and all
of which taken together shall constitute one and the same Agreement.
SECTION 4. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
40
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 WALT DISNEY COMPANY
By
Title
CITICORP USA, INC., as Agent
By
Vice President
WITHDRAWING LENDERS:
THE BANK OF NOVA SCOTIA
By
Title
BANQUE INDOSUEZ
By
Title
BANK OF AMERICA, ILLINOIS (formerly known as
CONTINENTAL BANK N.A.)
By
Title
41
Dates Referenced Herein and Documents Incorporated by Reference
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