EXHIBIT 4.3
EXECUTION COPY
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364-DAY CREDIT AGREEMENT
Dated as of October 31, 1995
Among
DC HOLDCO, INC.
as Borrower
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and
THE FINANCIAL INSTITUTIONS NAMED HEREIN
as Lenders
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and
CITICORP USA, INC.
as Administrative Agent
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and
CREDIT SUISSE
as Co-Administrative Agent
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms ............................ 2
SECTION 1.02. Computation of Time Periods ...................... 12
SECTION 1.03. Accounting Terms ................................. 12
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances ..................................... 12
SECTION 2.02. Making the Advances .............................. 12
SECTION 2.03. Facility Fee ..................................... 14
SECTION 2.04. Reduction of the Commitments ..................... 14
SECTION 2.05. Repayment of Advances ............................ 14
SECTION 2.06. Interest on Advances ............................. 14
SECTION 2.07. Additional Interest on Eurodollar Rate Advances .. 15
SECTION 2.08. Interest Rate Determination ...................... 15
SECTION 2.09. Optional Conversion of Advances .................. 16
SECTION 2.10. Prepayments of Advances .......................... 17
SECTION 2.11. Increased Costs .................................. 17
SECTION 2.12. Illegality ....................................... 18
SECTION 2.13. Payments and Computations ........................ 19
SECTION 2.14. Taxes ............................................ 20
SECTION 2.15. Sharing of Payments, Etc ......................... 22
SECTION 2.16. Mandatory Assignment by a Lender; Mitigation ..... 22
SECTION 2.17. Evidence of Debt ................................. 23
SECTION 2.18. Use of Proceeds .................................. 24
SECTION 2.19. Extension of Termination Date .................... 24
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 3.01. Condition Precedent to Effectiveness
of Section 2.01 ................................ 26
SECTION 3.02. Conditions Precedent to Each Borrowing ........... 27
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower ... 28
SECTION 4.02. Additional Representations and Warranties of
the Borrower as of Each Extension Date ......... 29
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants ............................ 30
SECTION 5.02. Negative Convenant ............................... 32
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default ................................ 33
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action ......................... 34
SECTION 7.02. Administrative Agent's Reliance, Etc. ............ 35
SECTION 7.03. CUSA and Affiliates .............................. 35
SECTION 7.04. Lender Credit Decision ........................... 35
SECTION 7.05. Indemnification .................................. 36
SECTION 7.06. Successor Administrative Agent ................... 36
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. ................................ 36
SECTION 8.02. Notices, Etc. ................................... 37
SECTION 8.03. No Waiver; Remedies ............................. 38
SECTION 8.04. Costs and Expenses .............................. 38
SECTION 8.05. Right of Set-off ................................ 38
SECTION 8.06. Binding Effect .................................. 39
SECTION 8.07. Assignments and Participations .................. 39
SECTION 8.08. Indemnification ................................. 41
SECTION 8.09. Confidentiality ................................. 42
SECTION 8.10. Consent to Jurisdiction and Service of Process .. 42
SECTION 8.11. Governing Law ................................... 43
SECTION 8.12. Execution in Counterparts ....................... 43
364-DAY CREDIT AGREEMENT
DATED AS OF OCTOBER 31, 1995
DC HOLDCO, INC., a Delaware corporation (the "BORROWER"), the banks,
financial institutions and other institutional lenders (the "INITIAL LENDERS")
listed on the signature pages hereof under the heading "The Initial Lenders",
CITICORP USA, INC., a Delaware corporation ("CUSA"), as administrative agent
(together with any successor Administrative Agent appointed pursuant to Article
VII, the "ADMINISTRATIVE AGENT") for the Lenders (as hereinafter defined)
hereunder, and CREDIT SUISSE, a Swiss banking corporation ("CREDIT SUISSE"), as
co-administrative agent (the "CO-ADMINISTRATIVE AGENT") for the Lenders
hereunder.
PRELIMINARY STATEMENTS
(1) The Walt Disney Company, a Delaware corporation ("DISNEY"), and Capital
Cities/ABC, Inc., a New York corporation ("CAPITAL CITIES/ABC"), have entered
into an Amended and Restated Agreement and Plan of Reorganization dated as of
July 31, 1995 (as amended, supplemented or otherwise modified through the date
hereof, the "REORGANIZATION AGREEMENT"), pursuant to which Disney has formed (a)
the Borrower, (b) a subsidiary of the Borrower incorporated in the State of
Delaware, which shall be merged with and into Disney (the "DISNEY MERGER"), with
Disney being the surviving corporation, and (c) a subsidiary of the Borrower
incorporated in the State of New York, which shall be merged with and into
Capital Cities/ABC (the "CAPITAL CITIES/ABC MERGER" and, together with the
Disney Merger, the "MERGERS"), with Capital Cities/ABC being the surviving
corporation.
(2) Upon the effectiveness of the Mergers, (a) each outstanding share of
common stock of Disney (together with the rights associated therewith) shall be
converted, without any further action by the holder thereof (the "DISNEY SHARE
CONVERSION"), into one share of common stock of the Borrower and (b) each
outstanding share of common stock of Capital Cities/ABC shall be converted, at
the election of the holder thereof (the "CAPITAL CITIES/ABC SHARE CONVERSION"
and, together with the Disney Share Conversion, the "SHARE CONVERSIONS"), into
cash, shares of common stock of the Borrower or a combination of cash and shares
of common stock of the Borrower. The Mergers and the Share Conversions are
herein collectively referred to as the "TRANSACTION". Immediately after the
consummation of the Transaction, each of Disney and Capital Cities/ABC will be a
wholly owned subsidiary of the Borrower, and the Borrower will be renamed "The
Walt Disney Company".
(3) The Borrower has requested that the Lenders agree to extend credit to
it from time to time in an aggregate principal amount of up to $7,000,000,000 in
order to support the obligations of the Borrower in respect of commercial paper
issued by the Borrower, to finance in part the Transaction, to pay fees and
expenses incurred in connection with the consummation of the Transaction, and/or
for other general corporate purposes of the Borrower and its subsidiaries. The
Lenders have indicated their willingness to agree to extend credit from time to
time in such amount on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the parties hereto hereby agree as follows:
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms . As used in this Agreement, the
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following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ADMINISTRATIVE AGENT" has the meaning specified in the recital of parties
to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means such account of the Administrative
Agent maintained by the Administrative Agent at the office of Citibank at
399 Park Avenue, New York, New York 10043, as the Administrative Agent
shall notify the Borrower and the Lenders from time to time.
"ADVANCE" means an advance by a Lender to the Borrower as part of a
Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance,
each of which shall be a "Type" of Advance.
"AFFILIATE" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person.
"AGREEMENT" means this 364-Day Credit Agreement, as it may be amended,
supplemented or otherwise modified from time to time in accordance with
Section 8.01.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered into
by a Lender and an Eligible Assignee, and accepted by the Administrative
Agent and the Borrower, in substantially the form of Exhibit B hereto.
"ASSUMING LENDER" has the meaning specified in Section 2.19(c).
"ASSUMPTION AGREEMENT" has the meaning specified in Section 2.19(c).
"BASE RATE" means, for each day in any period, a fluctuating interest rate
per annum as shall be in effect from time to time, which rate per annum
shall at all times for such day during such period be equal to the highest
of:
(a) the rate of interest announced publicly by Citibank in New York, New
York, from time to time, as Citibank's base rate in effect for such
day;
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(b) the sum (adjusted to the nearest 1/4 of one percent or, if there is no
nearest 1/4 of one percent, to the next higher 1/4 of one percent) of
(i) 0.50%, (ii) the rate obtained by dividing (A) the latest three-
week moving average of secondary market morning offering rates in the
United States for three-month certificates of deposit of major United
States money market banks, such three-week moving average (adjusted on
the basis of a year of 365 or 366 days, as the case may be) being
determined weekly on each Monday (or, if any such day is not a
Business Day, on the next succeeding Business Day) for the three-week
period ending on the previous Friday by Citibank on the basis of such
rates reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of deposit
dealers of recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily percentages
specified during such three-week period by the Board of Governors of
the Federal Reserve System (or any successor thereto) for determining
the maximum reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement) for
Citibank in respect of liabilities consisting of or including (among
other liabilities) three-month U.S. dollar nonpersonal time deposits
in the United States, and (iii) the average during such three-week
period of the annual assessment rates estimated by Citibank for
determining the then current annual assessment payable by Citibank to
the Federal Deposit Insurance Corporation (or any successor thereto)
for insuring U.S. dollar deposits of Citibank in the United States;
and
(c) 0.50% per annum above the Federal Funds Rate for such day.
"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.
"CAPITAL CITIES/ABC" has the meaning specified in the Preliminary
Statements to this Agreement.
"CAPITAL CITIES/ABC MERGER" has the meaning specified in the Preliminary
Statements to this Agreement.
"CAPITAL CITIES/ABC SHARE CONVERSION" has the meaning specified in the
Preliminary Statements to this Agreement.
"CITIBANK" means Citibank, N.A., a national banking association.
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"CO-ADMINISTRATIVE AGENT" has the meaning specified in the recital of
parties to this Agreement.
"COMMITMENT" has the meaning specified in Section 2.01.
"CONSENTING LENDER" has the meaning specified in Section 2.19(b).
"CONVERT", "CONVERSION" and "CONVERTED" each refer to a conversion of
Advances of one Type into Advances of another Type pursuant to Section 2.08
or 2.09.
"CREDIT SUISSE" has the meaning specified in the recital of parties to this
Agreement.
"CUSA" has the meaning specified in the recital of parties to this
Agreement.
"DEBT" means, with respect to any Person: (a) indebtedness for borrowed
money, (b) obligations evidenced by bonds, debentures, notes or other
similar instruments, (c) obligations to pay the deferred purchase price of
property or services (other than trade payables incurred in the ordinary
course of business), (d) obligations as lessee under leases which shall
have been or should be, in accordance with GAAP, recorded as capital leases
and (e) obligations under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of any other Person of the kinds referred to in clauses (a)
through (d) above.
"DISNEY" has the meaning specified in the Preliminary Statements to this
Agreement.
"DISNEY MERGER" has the meaning specified in the Preliminary Statements to
this Agreement.
"DISNEY SHARE CONVERSION" has the meaning specified in the Preliminary
Statements to this Agreement.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the office of
such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assumption Agreement or the Assignment and
Acceptance, as the case may be, pursuant to which it became a Lender, or
such other office of such Lender as such Lender may from time to time
specify to the Borrower and the Administrative Agent for such purpose.
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"ELIGIBLE ASSIGNEE" means (a) a Lender or any Affiliate of a Lender, and
(b) any bank or other financial institution, or any other Person, which has
been approved in writing by the Borrower and the Administrative Agent as an
Eligible Assignee for purposes of this Agreement; provided, however, that
neither the Borrower's approval nor the Administrative Agent's approval
shall be unreasonably withheld; and provided further, however, that the
Borrower may withhold its approval if the Borrower reasonably believes that
an assignment to such Eligible Assignee
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pursuant to Section 8.07 will result in the incurrence of increased costs
payable by the Borrower pursuant to Section 2.11 or 2.14.
"ENVIRONMENTAL CLAIM" means any administrative, regulatory or judicial
action, suit, demand, claim, lien, notice or proceeding relating to any
Environmental Law or any Environmental Permit.
"ENVIRONMENTAL LAW" means any federal, state or local statute, law, rule,
regulation, ordinance, code or duly promulgated policy or rule of common
law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any order,
consent decree or judgment, relating to the environment, health, safety or
any Hazardous Material.
"ENVIRONMENTAL PERMIT" means any permit, approval, identification number,
license or other authorization required under any applicable Environmental
Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV of ERISA
is a member of the Borrower's controlled group, or under common control
with the Borrower, within the meaning of Section 414 of the Internal
Revenue Code of 1986, as amended.
"ERISA EVENT" means: (a) (i) the occurrence with respect to a Plan of a
reportable event, within the meaning of Section 4043 of ERISA, unless the
30-day notice requirement with respect thereto has been waived by the
Pension Benefit Guaranty Corporation or (ii) the provisions of paragraph
(1) of Section 4043(b) of ERISA (without regard to paragraph (2) of such
Section) are applicable with respect to a contributing sponsor, as defined
in Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA could
reasonably be expected to occur with respect to such Plan within the
following 30 days; (b) the provision by the administrator of any Plan of a
notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan amendment referred
to in Section 4041(e) of ERISA); (c) the cessation of operations by the
Borrower or any ERISA Affiliate at a facility in the circumstances
described in Section 4062(e) of ERISA; (d) the withdrawal by the Borrower
or any ERISA Affiliate from a Multiple Employer Plan during a plan year for
which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (e) the failure by the Borrower or any ERISA Affiliate to make a
payment to a Plan described in Section 302(f)(1)(A) of ERISA; (f) the
adoption of an amendment to a Plan requiring the provision of security to
such Plan, pursuant to Section 307 of ERISA; or (g) the institution by the
Pension Benefit Guaranty Corporation of proceedings to terminate a Plan,
pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition which is reasonably likely to constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, a Plan.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
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"EURODOLLAR LENDING OFFICE" means, with respect to any Lender, the office
of such Lender specified as its "Eurodollar Lending Office" opposite its
name on Schedule I hereto or in the Assumption Agreement or the Assignment
and Acceptance, as the case may be, pursuant to which it became a Lender
(or, if no such office is specified, its Domestic Lending Office), or such
other office of such Lender as such Lender may from time to time specify to
the Borrower and the Administrative Agent for such purpose.
"EURODOLLAR RATE" means, for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Borrowing, an interest rate per annum
equal to the average (rounded upward to the nearest whole multiple of 1/16
of 1% per annum, if such average is not such a multiple) of the rate per
annum at which deposits in U.S. dollars are offered by the principal office
of each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period for a period equal to such
Interest Period and in an amount substantially equal to such Reference
Bank's (or in the case of Citibank, CUSA's) Eurodollar Rate Advance
comprising part of such Borrowing. The Eurodollar Rate for any Interest
Period for each Eurodollar Rate Advance comprising part of the same
Borrowing shall be determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the Administrative Agent from
the Reference Banks two Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.08.
"EURODOLLAR RATE ADVANCE" means an Advance which bears interest as provided
in Section 2.06(a)(ii).
"EURODOLLAR RATE MARGIN" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
=================================================
PUBLIC DEBT RATING
S&P/MOODY'S APPLICABLE MARGIN
Level 1
- -------
AA-/Aa3 or above 0.140%
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Level 2
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Lower than AA-/Aa3 but
at least A/A2 0.145%
- -------------------------- ------
Level 3
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Lower than A/A2 but
at least A-/A3 0.160%
- -------------------------- ------
Level 4
- -------
Lower than A-/A3 or no
Public Debt Rating in effect 0.180%
- -------------------------- ------
=================================================
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"EURODOLLAR RATE RESERVE PERCENTAGE" means, with respect to any Lender for
any Interest Period for any Eurodollar Rate Advance, the reserve percentage
applicable during such Interest Period (or, if more than one such
percentage shall be so applicable, the daily average of such percentages
for those days in such Interest Period during which any such percentage
shall be so applicable) under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor thereto)
for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for such Lender with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term equal to
such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXISTING CREDIT AGREEMENTS" means, collectively, (a) the Second Amended
and Restated Credit Agreement dated as of April 12, 1995 among Disney, the
financial institutions party thereto and CUSA, as agent thereunder, as
amended, supplemented or otherwise modified to the Effective Date, and (b)
the Revolving Credit Agreement dated as of January 3, 1986 among Capital
Cities/ABC, the financial institutions party thereto and Chemical Bank, as
agent thereunder, as amended, supplemented or otherwise modified to the
Effective Date.
"EXTENSION DATE" has the meaning specified in Section 2.19(b).
"FACILITY FEE PERCENTAGE" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
PUBLIC DEBT RATING
S&P/MOODY'S APPLICABLE MARGIN
=================================================
Level 1
- -------
AA-/Aa3 or above 0.040%
- ----------------------------- ------
Level 2
- -------
Lower than AA-/Aa3 but
at least A/A2 0.050%
- ----------------------------- ------
Level 3
- -------
Lower than A/A2 but 0.060%
at least A-/A3
- ----------------------------- ------
Level 4
- -------
Lower than A-/A3 or no
Public Debt Rating in effect 0.070%
- ----------------------------- ------
=================================================
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the immediately preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is
not so published for
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any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by the Administrative
Agent.
"FIVE-YEAR CREDIT AGREEMENT" means the Five-Year Credit Agreement being
entered into on the date of this Agreement among the Borrower, the banks,
financial institutions and other institutional lenders party thereto, CUSA,
as the administrative agent thereunder, and Credit Suisse, as the co-
administrative agent thereunder, as such agreement may be amended,
supplemented or otherwise modified hereafter from time to time.
"GAAP" means generally accepted accounting principles consistent with those
applied in the preparation of the audited financial statements referred to
in Section 4.01(c)(i) dated September 30, 1994.
"HAZARDOUS MATERIAL" means (a) any petroleum or petroleum product, natural
or synthetic gas, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, or radon gas, (b) any substance defined
as or included in the definition of "hazardous substances", hazardous
wastes", hazardous materials", "toxic substances", "contaminants" or
"pollutants", or words of similar import, under any applicable
Environmental Law or (c) any other substance to which exposure is regulated
by any governmental or regulatory authority.
"INDEMNIFIED MATTERS" has the meaning specified in Section 8.08.
"INDEMNIFIED PARTY" has the meaning specified in Section 8.08.
"INFORMED PARTIES" has the meaning specified in Section 8.09.
"INITIAL LENDER" has the meaning specified in the recital of parties to
this Agreement.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance comprising part
of the same Borrowing, the period commencing on the date of such Eurodollar
Rate Advance or on the date of the Conversion of any Base Rate Advance into
such Eurodollar Rate Advance and ending on the last day of the period
selected by the Borrower pursuant to the provisions below and, thereafter,
each subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period selected
by the Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three, six or, if generally available to
all of the Lenders, twelve months as the Borrower may, upon notice received
by the Administrative Agent not later than 1:00 P.M. (New York City time)
on the third Business Day prior to the first day of such Interest Period,
select; provided, however, that:
(i) Interest Periods commencing on the same date for Eurodollar Rate
Advances comprising part of the same Borrowing shall be of the same
duration;
(ii) whenever the last day of any Interest Period would otherwise occur on
a day other than a Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding Business Day,
provided, however, that if such extension
9
would cause the last day of such Interest Period to occur in the next
succeeding calendar month, the last day of such Interest Period shall
occur on the immediately preceding Business Day;
(iii) whenever the first day of any Interest Period occurs on a day of an
initial calendar month for which there is no numerically corresponding
day in the calendar month that succeeds such initial calendar month by
the number of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business Day of
such succeeding calendar month; and
(iv) the Borrower may not select for any Advance any Interest Period which
ends after the scheduled Revolver Termination Date then in effect or,
if the Advances have been converted to a term loan pursuant to Section
2.05 prior to the time of such selection, which ends after the
Maturity Date.
"IRS" has the meaning specified in Section 2.14(e).
"LENDERS" means, collectively, each Initial Lender, each Assuming Lender
that shall become a party hereto pursuant to Section 2.19 and each Eligible
Assignee that shall become a party hereto pursuant to Section 8.07;
provided, however, that for purposes of any determination to be made under
Section 2.07, 2.11, 2.12 or 8.04(b) with respect to CUSA, in its capacity
as a Lender, the term "Lender" shall be deemed to include Citibank.
"LIEN" means any lien, security interest or other charge or encumbrance of
any kind, or any other type of preferential arrangement which has the same
effect as a lien or security interest.
"MAJORITY LENDERS" means, at any time, Lenders owed at least a majority in
interest of the aggregate unpaid principal amount of the Advances owing to
Lenders at such time, or, if no such principal amount is outstanding at
such time, Lenders having at least a majority in interest of the
Commitments at such time; provided, however, that neither the Borrower nor
any of its Affiliates, if a Lender, shall be included in the determination
of Majority Lenders at any time.
"MATERIAL SUBSIDIARY" means, at any date of determination, a subsidiary of
the Borrower that, either individually or together with its subsidiaries,
taken as a whole, has total assets exceeding $100,000,000 on such date.
"MATURITY DATE" means the earlier of (a) the second anniversary of the
Revolver Termination Date and (b) the date of termination in whole of the
aggregate Commitments pursuant to Section 2.04 or 6.01.
"MEASUREMENT PERIOD" means, at any date of determination, the most recently
completed four consecutive fiscal quarters of the Borrower on or
immediately prior to such date or, if less than four consecutive fiscal
quarters of the Borrower have been completed since the Effective Date, the
fiscal quarters of the Borrower that have been completed since the
Effective Date.
"MERGER" has the meaning specified in the Preliminary Statements to this
Agreement.
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"MOODY'S" means Moody's Investors Service, Inc. or any successor thereto.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making
or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make
contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (i) is maintained for employees of the
Borrower or any ERISA Affiliate and at least one Person other than the
Borrower and the ERISA Affiliates or (ii) was so maintained and in respect
of which the Borrower or an ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"NON-CONSENTING LENDER" has the meaning specified in Section 2.19(b).
"NOTE" has the meaning specified in Section 2.17.
"NOTICE OF BORROWING" has the meaning specified in Section 2.02(a).
"OTHER TAXES" has the meaning specified in Section 2.14(b).
"PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any political subdivision
or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PUBLIC DEBT RATING" means, as of any date of determination, the higher
rating that has been most recently announced by either S&P or Moody's, as
the case may be, for any class of non-credit enhanced long-term senior
unsecured public debt issued by the Borrower or, if and during such time
prior to October 1, 1996 as the Borrower has not issued any non-credit
enhanced long-term senior unsecured public debt that is rated by S&P or
Moody's and has not issued any commercial paper that is rated by S&P or
Moody's, by Disney; provided, however, that from and after the Effective
Date to and including September 30, 1996, if the Borrower has not issued
any non-credit enhanced long-term senior unsecured public debt that is
rated by S&P or Moody's and the rating of any commercial paper issued by
the Borrower is below P-1 by Moody's or A-1 by S&P, the Eurodollar Rate
Margin and the Facility Fee Percentage will be set in accordance with Level
3 under the definition of "Eurodollar Rate Margin" or "Facility Fee
Percentage", as the case may be. For purposes of the foregoing, (a) if
only one of S&P and Moody's shall have in effect a Public Debt Rating, the
Eurodollar Rate Margin and the Facility Fee Percentage shall be determined
by reference to the available rating; (b) if, at any time prior to October
1, 1996, neither S&P nor Moody's shall have in effect a Public Debt Rating
of Disney, or, if on or at any time after October 1, 1996, neither S&P nor
Moody's shall have in effect a Public Debt Rating of the Borrower, the
Eurodollar Rate Margin and the Facility Fee Percentage will be set in
accordance with Level 4 under the definition of "Eurodollar Rate Margin" or
"Facility Fee Percentage", as the case may be; (c) if the ratings
established by S&P
11
and Moody's shall fall within different levels, the Eurodollar Rate Margin
and the Facility Fee Percentage shall be based upon the higher rating; (d)
if any rating established by S&P or Moody's shall be changed, such change
shall be effective as of the date on which such change is first announced
publicly by the rating agency making such change; and (e) if S&P or Moody's
shall change the basis on which ratings are established, each reference to
the Public Debt Rating announced by S&P or Moody's, as the case may be,
shall refer to the then equivalent rating by S&P or Moody's, as the case
may be.
"REFERENCE BANKS" means Citibank, Credit Suisse, Bank of America NT&SA,
Bankers Trust Company and Chemical Bank, or, in the event that less than
two of such banks remain Lenders hereunder at any time, any other
commercial bank designated by the Borrower and approved by the Majority
Lenders as constituting a "Reference Bank" hereunder.
"REGISTER" has the meaning specified in Section 8.07(c).
"REORGANIZATION AGREEMENT" has the meaning specified in the Preliminary
Statements to this Agreement.
"REVOLVER TERMINATION DATE" means the earlier of (a) October 29, 1996,
subject to the extension thereof pursuant to Section 2.19, and (b) the date
of termination in whole of the aggregate Commitments pursuant to Section
2.04 or 6.01; provided, however, that the Revolver Termination Date of any
Lender that is a Non-Consenting Lender to any requested extension pursuant
to Section 2.19 shall be the Revolver Termination Date in effect
immediately prior to the applicable Extension Date for all purposes of this
Agreement.
"S&P" means Standard & Poor's Ratings Group or any successor thereto.
"SEC" has the meaning specified in Section 5.01(d)(i).
"SHARE CONVERSIONS" has the meaning specified in the Preliminary Statements
to this Agreement.
"SIGNIFICANT SUBSIDIARY" means any subsidiary of the Borrower or any of its
subsidiaries that constitutes a "significant subsidiary" under Rule 405
promulgated by the SEC under the Securities Act of 1933, as amended.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (i) is maintained for employees of the Borrower
or an ERISA Affiliate and no Person other than the Borrower and the ERISA
Affiliates or (ii) was so maintained and in respect of which the Borrower
or an ERISA Affiliate could have liability under Section 4069 of ERISA in
the event such plan has been or were to be terminated.
"TAXES" has the meaning specified in Section 2.14(a).
"TERM LOAN CONVERSION DATE" means the Revolver Termination Date on which
all Advances outstanding on such date are converted into a term loan
pursuant to Section 2.05.
12
"TERM LOAN ELECTION" has the meaning specified in Section 2.05.
"TRANSACTION" has the meaning specified in the Preliminary Statements to
this Agreement.
"TYPE" has the meaning specified in the definition of "Advance".
"UNITED STATES" and "U.S." each means the United States of America.
SECTION 1.02. Computation of Time Periods . In this Agreement in the
----------------------------
computation of periods of time from a specified date to a later specified date,
the word "FROM" means "from and including" and the words "TO" and "UNTIL" each
means "to but excluding".
SECTION 1.03. Accounting Terms . All accounting terms not specifically
-----------------
defined herein shall be construed in accordance with GAAP.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances . Each Lender severally agrees, on the terms
-------------
and conditions hereinafter set forth, to make Advances to the Borrower from time
to time on any Business Day during the period from the Effective Date until the
Revolver Termination Date in an aggregate amount not to exceed at any time
outstanding the amount set forth opposite such Lender's name on the signature
pages hereof or, if such Lender has become a Lender hereunder pursuant to an
Assumption Agreement, the amount set forth as the Commitment of such Lender in
such Assumption Agreement or, if such Lender has entered into an Assignment and
Acceptance, the amount set forth for such Lender in the Register maintained by
the Administrative Agent pursuant to Section 8.07(c), as such amount may be
reduced pursuant to Section 2.04 (such Lender's "COMMITMENT"). Each Borrowing
shall be in an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and shall consist of Advances of the same Type made
on the same day by the Lenders ratably according to their respective
Commitments. Within the limits of each Lender's Commitment, the Borrower from
time to time may borrow under this Section 2.01, prepay pursuant to Section 2.10
and reborrow under this Section 2.01.
SECTION 2.02. Making the Advances . (a) Each Borrowing shall be made on
--------------------
notice, given not later than 11:00 A.M. (New York City time) on the same
Business Day as the date of a proposed Borrowing comprised of Base Rate Advances
and not later than 1:00 P.M. (New York City time) on the third Business Day
prior to the date of a proposed Borrowing comprised of Eurodollar Rate Advances,
by the Borrower to the Administrative Agent, which shall give to each Lender
prompt notice thereof by telecopier or telex. Each such notice of a Borrowing
(a "NOTICE OF BORROWING") shall be by telecopier or telex, or by telephone,
confirmed immediately by telecopier or telex, in substantially the form of
Exhibit A hereto, specifying therein the requested (i) date of such Borrowing
(which shall be a Business Day), (ii) Type of Advances comprising such
Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a
Borrowing comprised of Eurodollar Rate Advances, initial Interest Period for
each such Advance. Each Lender shall, before 1:00 P.M. (New York City time) on
the date of such Borrowing, make available for the account of its Applicable
Lending Office to the Administrative Agent at the Administrative Agent's
Account, in same day funds, such Lender's ratable portion of such
13
Borrowing. After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower at the
office where the Administrative Agent's Account is maintained.
(b) Anything in subsection (a) above or Section 2.01 to the contrary
notwithstanding, the Borrower may not select Eurodollar Rate Advances for any
Borrowing if the aggregate amount of such Borrowing is less than $20,000,000 or
if the obligation of the Lenders to make Eurodollar Rate Advances shall be
suspended at such time pursuant to Section 2.08.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing which the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss, cost or expense incurred
by reason of the liquidation or reemployment of deposits or other funds acquired
by such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that any Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender agrees to pay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is paid
to the Administrative Agent, at the Federal Funds Rate; provided, however, that
(i) within two Business Days after any Lender shall fail to make such ratable
portion available to the Administrative Agent, the Administrative Agent shall
notify the Borrower of such failure and (ii) if such Lender shall not have paid
such corresponding amount to the Administrative Agent within two Business Days
after such demand is made of such Lender by the Administrative Agent, the
Borrower agrees to repay to the Administrative Agent forthwith, upon demand by
the Administrative Agent to the Borrower, such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to the Borrower until the date such amount is repaid to the Administrative
Agent, at the interest rate applicable at the time to Advances comprising such
Borrowing. If and to the extent such corresponding amount shall be paid by such
Lender to the Administrative Agent in accordance with this Section 2.02(d), such
amount so paid shall constitute such Lender's Advance as part of such Borrowing
for all purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made by it as part
of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
14
SECTION 2.03. Facility Fee . The Borrower agrees to pay to each Lender a
-------------
facility fee on the average daily amount (whether used or unused) of such
Lender's Commitment from (a) the earlier of (i) December 11, 1995 and (ii) the
first date on which all necessary approvals of the Mergers by the shareholders
of Disney and the stockholders of Capital Cities/ABC have been obtained, in the
case of each Initial Lender and (b) the later of (i) December 11, 1995 and (ii)
the effective date specified in the Assumption Agreement or the Assignment and
Acceptance pursuant to which it became a Lender, in the case of each other
Lender until, in each case, the Revolver Termination Date or, if the Borrower
has made the Term Loan Election pursuant to Section 2.05 on or prior to such
date, the Maturity Date, payable quarterly in arrears on the first Business Day
of each April, July, October and January during the term of such Lender's
Commitment, commencing January 2, 1996, and on the Revolver Termination Date or,
if the Borrower has made the Term Loan Election pursuant to Section 2.05 on or
prior to such date, the Maturity 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 . (a) Optional. The Borrower
----------------------------- --------
shall have the right, upon at least three Business Days' notice to the
Administrative Agent, to terminate in whole or reduce ratably in part the unused
portions of the respective Commitments of the Lenders, provided that each
partial reduction shall be in the aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof.
(b) Mandatory. On the Revolver Termination Date, if the Borrower has made
---------
the Term Loan Election in accordance with Section 2.05 prior to such date, and
from time to time thereafter upon each prepayment of the Advances, the aggregate
Commitments of the Lenders under this Agreement shall be automatically and
permanently reduced on a pro rata basis by an amount equal to the amount by
which the aggregate Commitments of the Lenders under this Agreement immediately
prior to such reduction exceeds the aggregate unpaid principal amount of the
Advances outstanding at such time.
SECTION 2.05. Repayment of Advances . The Borrower shall, subject to the
----------------------
next succeeding sentence, repay to each Lender on the Revolver Termination Date
the aggregate principal amount of the Advances owing to such Lender on such
date. The Borrower may, upon not less than 15 days notice to the Administrative
Agent, elect (the "TERM LOAN ELECTION") to convert all of the Advances
outstanding on the Revolver Termination Date in effect at such time into a term
loan which the Borrower shall repay in full ratably to the Lenders on the
Maturity Date; provided that no Event of Default, or event that with the giving
of notice or passage of time or both would constitute an Event of Default, has
occurred and is continuing on the date of notice of the Term Loan Election or on
the Term Loan Conversion Date on which such election is to be effected.
SECTION 2.06. Interest on Advances . (a) Scheduled Interest. The
--------------------- ------------------
Borrower shall pay to each Lender interest on the unpaid principal amount of
each Advance owing to such Lender from the date of such Advance until such
principal amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a Base Rate
------------------
Advance, a rate per annum equal at all times to the remainder of (A) the
Base Rate in effect from time to time minus (B) the Facility Fee Percentage
in effect from time to time, payable quarterly in arrears on the first
Business Day of each April, July, October and January during such periods
and on the date such Base Rate Advance shall be Converted or paid in full.
15
(ii) Eurodollar Rate Advances. During such periods as such Advance is a
------------------------
Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (A) the Eurodollar Rate for
such Interest Period for such Advance and (B) the Eurodollar Rate Margin in
effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more than
three months, on the date which occurs three months and, if applicable, six
months, nine months and twelve months after the first day of such Interest
Period and on the date such Eurodollar Rate Advance shall be Converted or
paid in full.
(b) Default Interest. The Borrower shall pay interest on the unpaid
----------------
principal amount of each Advance that is not paid when due and on the unpaid
amount of all interest, fees and other amounts payable hereunder that is not
paid when due, payable on demand, at a rate per annum equal at all times to (i)
in the case of any amount of principal, the greater of (x) 2% per annum above
the rate per annum required to be paid on such Advance immediately prior to the
date on which such amount became due and (y) 2% per annum above the Base Rate in
effect from time to time and (ii) to the fullest extent permitted by law, in the
case of all other amounts, 2% per annum above the Base Rate in effect from time
to time.
SECTION 2.07. Additional Interest on Eurodollar Rate Advances . The
------------------------------------------------
Borrower shall pay to each Lender, so long as such Lender shall be required
under regulations of the Board of Governors of the Federal Reserve System to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, additional interest on the unpaid principal
amount of each Eurodollar Rate Advance of such Lender, from the date of such
Advance until such principal amount is paid in full, at an interest rate per
annum equal at all times to the remainder obtained by subtracting (i) the
Eurodollar Rate for the applicable Interest Period for such Advance from (ii)
the rate obtained by dividing such Eurodollar Rate by a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage of such Lender for such Interest
Period, payable on each date on which interest is payable on such Advance. Such
additional interest shall be determined by such Lender and notified in
reasonable detail to the Borrower through the Administrative Agent.
SECTION 2.08. Interest Rate Determination . (a) Each Reference Bank
----------------------------
agrees to furnish to the Administrative Agent timely information for the purpose
of determining each Eurodollar Rate. If any one or more of the Reference Banks
shall not furnish such timely information to the Administrative Agent for the
purpose of determining such interest rate, the Administrative Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks.
(b) The Administrative Agent shall give prompt notice to the Borrower and
the Lenders of the applicable interest rate determined by the Administrative
Agent for purposes of Section 2.06(a)(i) or (a)(ii), and the rate, if any,
furnished by each Reference Bank for the purpose of determining the applicable
interest rate under Section 2.06(a)(ii).
(c) If fewer than two Reference Banks furnish timely information to the
Administrative Agent for purposes of determining the Eurodollar Rate for any
Eurodollar Rate Advances, (i) the Administrative Agent shall forthwith notify
the Borrower and the Lenders that the interest rate cannot be determined for
such Eurodollar Rate Advances, (ii) each such Advance will automatically, on
16
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
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the Majority Lenders
notify the Administrative Agent that the Eurodollar Rate for any Interest Period
for such Advances will not adequately reflect the cost to such Majority Lenders
(which cost each such Majority Lender reasonably determines in good faith is
material) of making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period, the Administrative Agent shall forthwith so
notify the Borrower and the Lenders, whereupon, unless the Eurodollar Rate
Margin shall be increased to reflect such costs as determined by such Majority
Lenders and as agreed by the Borrower, (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended
until the Majority Lenders shall notify the Administrative Agent, and the
Administrative Agent shall in turn notify the Borrower and the Lenders, that the
circumstances causing such suspension no longer exist. The Administrative Agent
shall use reasonable efforts to determine from time to time whether the
circumstances causing such suspension no longer exist and, promptly after the
Administrative Agent knows that the circumstances causing such suspension no
longer exist, the Administrative Agent shall so notify the Borrower and the
Lenders.
(e) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders and
such Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(f) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $20,000,000, such Eurodollar Rate
Advances shall automatically Convert into Base Rate Advances and, on and after
such date, the right of the Borrower to Convert such Advances into Eurodollar
Rate Advances shall terminate; provided, however, that if and so long as each
such Eurodollar Rate Advance shall have the same Interest Period as Eurodollar
Rate Advances comprising another Borrowing or Borrowings, and the aggregate
unpaid principal amount of all such Eurodollar Rate Advances shall equal or
exceed $20,000,000, the Borrower shall have the right to continue all such
Eurodollar Rate Advances as, or to Convert all such Advances into, Eurodollar
Rate Advances having such Interest Period.
(g) Upon the occurrence and during the continuance of any Event of Default
under Section 6.01(a), (i) each Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance and (ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended.
SECTION 2.09. Optional Conversion of Advances . The Borrower may on any
--------------------------------
Business Day, upon notice given to the Administrative Agent not later than 11:00
A.M. (New York City time) on the same Business Day as the date of the proposed
Conversion in the case of a Conversion of Eurodollar
17
Rate Advances into Base Rate Advances, and not later than 1:00 P.M. (New York
City time) on the third Business Day prior to the date of the proposed
Conversion in the case of a Conversion of Base Rate Advances into Eurodollar
Rate Advances or of Eurodollar Rate Advances of one Interest Period into
Eurodollar Rate Advances of another Interest Period, as the case may be, and
subject to the provisions of Sections 2.08, 2.09 and 2.12, Convert all Advances
of one Type comprising the same Borrowing into Advances of the other Type;
provided, however, that any Conversion of any Eurodollar Rate Advances into Base
Rate Advances or into Eurodollar Rate Advances of another Interest Period shall
be made on, and only on, the last day of an Interest Period for such Eurodollar
Rate Advances. Promptly upon receipt from the Borrower of a notice of a proposed
Conversion hereunder, the Administrative Agent shall give notice of such
proposed Conversion to each Lender. Each such notice of a Conversion shall,
within the restrictions set forth above, specify (i) the date of such Conversion
(which shall be a Business Day), (ii) the Advances to be Converted, and (iii) if
such Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for each such Advance. The Borrower may Convert all Eurodollar
Rate Advances of any one Lender into Base Rate Advances of such Lender in
accordance with the provisions of Section 2.12 by complying with the procedures
set forth therein and in this Section 2.09 as though each reference in this
Section 2.09 to Advances of any Type was to such Advances of such Lender. Each
such notice of Conversion shall, subject to the provisions of Sections 2.08 and
2.12, be irrevocable and binding on the Borrower.
SECTION 2.10. Prepayments of Advances . The Borrower may, upon not less
------------------------
than the same Business Day's notice to the Administrative Agent received not
later than 11:00 A.M. (New York City time) in the case of Borrowings consisting
of Base Rate Advances and upon at least three Business Days' notice to the
Administrative Agent received not later than 1:00 P.M. (New York City time) in
the case of Borrowings consisting of Eurodollar Rate Advances, stating the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the outstanding principal amounts of
the Advances constituting part of the same Borrowings in whole or ratably in
part, together with accrued interest to the date of such prepayment on the
principal amount prepaid; provided, however, that (a) each partial prepayment
shall be in an aggregate principal amount of $1,000,000 or an integral multiple
of $1,000,000 in excess thereof, and (b) in the case of any such prepayment of
Eurodollar Rate Advances, the Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 8.04(b).
SECTION 2.11. Increased Costs . (a) If after the date hereof, due to
----------------
either (i) the introduction of or any change (other than any change by way of
imposition or increase of reserve requirements included in the Eurodollar Rate
Reserve Percentage) in or in the interpretation of any law or regulation or (ii)
the compliance with any hereafter promulgated guideline or request from any
central bank or other governmental authority (whether or not having the force of
law), there shall be any increase in the cost (excluding any allocation of
corporate overhead) to any Lender (which cost such Lender reasonably determines
in good faith is material) of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances, then such Lender shall so notify the Borrower promptly
after such Lender knows of such increased cost and determines that such cost is
material and the Borrower shall from time to time, upon demand by such Lender
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost. A certificate of
such Lender as to the amount of such increased cost in reasonable detail and
stating the basis upon which such amount has been calculated and certifying that
such Lender's method of allocating such costs is fair and reasonable and that
such Lender's demand for
18
payment of such costs hereunder is not inconsistent with its treatment of other
borrowers which, as a credit matter, are substantially similar to the Borrower
and which are subject to similar provisions, submitted to the Borrower and the
Administrative Agent by such Lender, shall be conclusive and binding for all
purposes, absent manifest error .
(b) If, after the date hereof, either (i) the introduction of or change in
or in the interpretation of any law or regulation or (ii) the compliance by any
Lender with any hereafter promulgated guideline or request from any central bank
or other governmental authority (whether or not having the force of law) affects
or would affect the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender and the amount of such
capital is materially increased by or based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type, then, such
Lender shall so notify the Borrower promptly after such Lender makes such
determination and, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender within five days
from the date of such demand, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder. A certificate of such Lender as to such
amount in reasonable detail and stating the basis upon which such amount has
been calculated and certifying that such Lender's method of allocating such
increase of capital is fair and reasonable and that such Lender's demand for
payment of such increase of capital hereunder is not inconsistent with its
treatment of other borrowers which, as a credit matter, are substantially
similar to the Borrower and which are subject to similar provisions, submitted
to the Borrower and the Administrative Agent by such Lender, shall be conclusive
and binding for all purposes, absent manifest error.
(c) The Borrower shall not be obligated to pay under this Section 2.11 any
amounts which relate to costs or increases of capital incurred prior to the 12
months immediately preceding the date of demand for payment of such amounts,
unless the applicable law, regulation, guideline or request resulting in such
costs or increases of capital is imposed retroactively. In the case of any law,
regulation, guideline or request which is imposed retroactively, the Lender
making demand for payment of any amount under this Section 2.11 shall notify the
Borrower not later than 12 months from the date that such Lender should
reasonably have known of such law, regulation, guideline or request and the
Borrower's obligation to compensate such Lender for such amount is contingent
upon such Lender's so notifying the Borrower; provided, however, that any
failure by such Lender to provide such notice shall not affect the Borrower's
obligations under this Section 2.11 with respect to amounts resulting from costs
or increases of capital incurred after the date which occurs 12 months
immediately preceding the date on which such Lender notified the Borrower of
such law, regulation, guideline or request.
(d) If any Lender shall subsequently recoup any costs (other than from the
Borrower) for which such Lender has theretofore been compensated by the Borrower
under this Section 2.11, such Lender shall remit to the Borrower an amount equal
to the amount of such recoupment. Amounts required to be paid by the Borrower
pursuant to this Section 2.11 shall be paid in addition to, and without
duplication of, any amounts required to be paid pursuant to Section 2.14.
SECTION 2.12. Illegality . Notwithstanding any other provision of this
-----------
Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the
19
interpretation of any law or regulation after the date hereof makes it unlawful,
or any central bank or other governmental authority asserts that it is unlawful,
for any Lender or its Eurodollar Lending Office to perform its obligations
hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar
Rate Advances hereunder, (i) the obligation of such Lender to make, or to
Convert Base Rate Advances into, Eurodollar Rate Advances shall be suspended
until such Lender shall notify the Administrative Agent, and the Administrative
Agent shall notify the Borrower and the other Lenders (which notice shall be
given promptly after the Administrative Agent knows that the circumstances
causing such suspension no longer exist), that the circumstances causing such
suspension no longer exist and (ii) the Borrower shall forthwith prepay in full
all Eurodollar Rate Advances of such Lender then outstanding, together with
interest accrued thereon, unless the Borrower, within five Business Days of
notice from the Administrative Agent or, if permitted by law, on and as of the
last day of the then existing Interest Period for such Eurodollar Rate Advances,
Converts all Eurodollar Rate Advances of such Lender then outstanding into Base
Rate Advances in accordance with Section 2.09.
SECTION 2.13. Payments and Computations . (a) The Borrower shall make
--------------------------
each payment hereunder and under the Notes, if any, not later than 11:00 A.M.
(New York City time) on the day when due in U.S. dollars to the Administrative
Agent at the Administrative Agent's Account in same day funds. The
Administrative Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or facility fees ratably (other
than amounts payable pursuant to Sections 2.07, 2.11, 2.14, 8.04 and 8.08) to
the Lenders for the account of their respective Applicable Lending Offices, and
like funds relating to the payment of any other amount payable to any Lender to
such Lender for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon any Assuming
Lender becoming a Lender hereunder as a result of an extension of the Revolver
Termination Date pursuant to Section 2.19, and upon Administrative Agent's
receipt of such Lender's Assumption Agreement and recording of the information
contained therein in the Register, from and after the applicable Extension Date,
the Administrative Agent shall make all payments hereunder and under any Notes
issued in connection therewith in respect of the interest assumed thereby to the
Assuming Lender. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(d), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes, if any, issued in connection therewith in respect of the
interest assigned thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) All computations of interest based on the Base Rate shall be made by
the Administrative Agent on the basis of a year of 365 or 366 days, as the case
may be, and all computations of interest based on the Eurodollar Rate or the
Federal Funds Rate and of facility fees shall be made by the Administrative
Agent, and all computations of additional interest pursuant to Section 2.07
shall be made by a Lender, on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or facility fees are payable.
Each determination by the Administrative Agent (or, in the case of Section 2.07,
by a Lender) of an interest rate hereunder shall be conclusive and binding for
all purposes, absent manifest error.
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(c) Whenever any payment hereunder or under the Notes, if any, shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fees, as
the case may be; provided, however, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the immediately
preceding Business Day.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full, the Administrative Agent
may assume that the Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on such due date an amount
equal to the amount then due such Lender. If and to the extent that the
Borrower shall not have so made such payment in full to the Administrative
Agent, each Lender shall repay to the Administrative Agent forthwith on demand
such amount distributed to such Lender together with interest thereon, for each
day from the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Administrative Agent, at the Federal Funds
Rate.
SECTION 2.14. Taxes . (a) Any and all payments by the Borrower hereunder
------
or under the Notes, if any, shall be made, in accordance with Section 2.13, free
and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Administrative
Agent, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender or the Administrative Agent (as
the case may be) is organized or any political subdivision thereof and, in the
case of each Lender, taxes imposed on its income, and franchise taxes imposed on
it, by the jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof or by any other jurisdiction in which such Lender
or the Administrative Agent is doing business that is unrelated to this
Agreement (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "TAXES"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder to any Lender or the Administrative Agent, (i) the sum
payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.14) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under the Notes, if any,
or from the execution, delivery or registration of, or otherwise with respect
to, this Agreement or the Notes, if any (hereinafter referred to as "OTHER
TAXES").
(c) The Borrower will indemnify each Lender and the Administrative Agent
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.14) paid by such Lender or the
21
Administrative Agent (as the case may be) and any liability (including penalties
to the extent not imposed as a result of such Lender's or the Administrative
Agent's (as the case may be) gross negligence or willful misconduct, interest
and expenses) arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted. This indemnification
shall be made within 30 days from the date such Lender or the Administrative
Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
will furnish to the Administrative Agent, at its address referred to in Section
8.02, the original or a certified copy of a receipt evidencing payment thereof.
(e) Each Lender that is not created or organized under the laws of the
United States or a political subdivision thereof shall deliver to the Borrower
and the Administrative Agent on or prior to the date of its execution and
delivery of this Agreement, and each such Lender that is not a party hereto on
the date hereof shall deliver to the Borrower and the Administrative Agent on or
prior to the date on which such Lender becomes a Lender pursuant to Section 2.19
or 8.07 (as the case may be), a true and accurate certificate executed in
duplicate by a duly authorized officer of such Lender in substantially the form
set out in Exhibit D-1 or D-2 hereto, as applicable, to the effect that such
Lender is eligible under the provisions of an applicable tax treaty concluded by
the United States (in which case the certificate shall be accompanied by two
executed copies of Form 1001 (or any successor or substitute form or forms) of
the Internal Revenue Service (the "IRS") of the United States), or under Section
1441(c) or 1442 of the Internal Revenue Code (in which case the certificate
shall be accompanied by two copies of IRS Form 4224 (or any successor or
substitute form or forms of the IRS) to receive, as of the date hereof or as of
the date such party becomes a Lender hereto pursuant to Section 2.19 or 8.07 (as
the case may be), as appropriate, payments hereunder without deduction or
withholding of United States federal income tax. Each such Lender further
agrees to deliver to the Borrower and the Administrative Agent from time to
time, as reasonably requested by the Borrower or the Administrative Agent, and
in any case before or promptly upon the occurrence of any events requiring a
change in the most recent certificate previously delivered pursuant to this
Section 2.14(e), a true and accurate certificate executed in duplicate by a duly
authorized officer of such Lender in substantially the form set out in Exhibit
D-1 or D-2 hereto, as applicable. Further, each Lender that delivers a
certificate in the form set out in Exhibit D-1 hereto agrees, to the extent
permitted by law, to deliver to the Borrower and the Administrative Agent within
15 days prior to every third anniversary of the date of delivery of the initial
IRS Form 1001 by such Lender (or more often if required by law) on which this
Agreement is still in effect, two accurate and complete original signed copies
of IRS Form 1001 (or any successor or substitute form or forms required under
the Internal Revenue Code or the applicable regulations promulgated thereunder)
and a certificate in the form set out in such Exhibit D-1, and each Lender that
delivers a certificate in the form set out in Exhibit D-2 hereto agrees to
deliver to the Borrower and the Administrative Agent, to the extent permitted by
law, within 15 days prior to the beginning of each subsequent taxable year of
such Lender (or more often if required by law) during which this Agreement is
still in effect, two accurate and complete original signed copies of IRS Form
4224 (or any successor or substitute form or forms required under the Internal
Revenue Code or the applicable regulations promulgated thereunder) and a
certificate in the form of such Exhibit D-2. Each such certificate shall
certify as to one of the following:
22
(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 Administrative Agent and shall
not be obligated to include in such form or document such confidential
information; provided that such Lender certifies to the Borrower that the
failure to disclose such confidential information does not increase the
obligations of the Borrower under this Section 2.14.
(f) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.14 shall survive the payment in full of principal and interest on
all Advances and the termination of this Agreement until such date as all
applicable statutes of limitations (including any extensions thereof) have
expired with respect to such agreements and obligations of the Borrower
contained in this Section 2.14.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any
------------------------
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances made by it (other than
pursuant to Section 2.07, 2.11, 2.14, 8.04 or 8.08) in excess of its ratable
share of payments on account of the Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participations in
the Advances made by them as shall be necessary to cause such purchasing Lender
to share the excess payment ratably with each of them, provided, however, that
if all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.15
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 2.16. Mandatory Assignment by a Lender; Mitigation. If any
---------------------------------------------
Lender requests from the Borrower either payment of additional interest on
Eurodollar Rate Advances pursuant
23
to Section 2.07, or reimbursement for increased costs pursuant to Section 2.11,
or payment of or reimbursement for Taxes pursuant to Section 2.14, or if any
Lender notifies the Administrative Agent that it is unlawful for such Lender or
its Eurodollar Lending Office to perform its obligations hereunder pursuant to
Section 2.12, (i) such Lender will, upon three Business Days' notice by the
Borrower to such Lender and the Administrative Agent, to the extent not
inconsistent with such Lender's internal policies and applicable legal and
regulatory restrictions, use reasonable efforts to make, fund or maintain its
Eurodollar Rate Advances through another Eurodollar Lending Office of such
Lender if (A) as a result thereof the additional amounts required to be paid
pursuant to Section 2.07, 2.11 or 2.14, as applicable, in respect of such
Eurodollar Rate Advances would be materially reduced or the provisions of
Section 2.12 would not apply to such Lender, as applicable, and (B) as
determined by such Lender in good faith but in its sole discretion, the making
or maintaining of such Eurodollar Rate Advances through such other Eurodollar
Lending Office would not otherwise materially and adversely affect such
Eurodollar Rate Advances or such Lender and (ii) unless such Lender has
theretofore taken steps to remove or cure, and has removed or cured, the
conditions creating such obligation to pay such additional amounts or the
circumstances described in Section 2.12, the Borrower may designate an Eligible
Assignee to purchase for cash (pursuant to an Assignment and Acceptance) all,
but not less than all, of the Advances then owing to such Lender and all, but
not less than all, of such Lender's rights and obligations hereunder, without
recourse to or warranty by, or expense to, such Lender, for a purchase price
equal to the outstanding principal amount of each such Advance then owing to
such Lender plus any accrued but unpaid interest thereon and any accrued but
unpaid facility fees owing thereto and, in addition, all additional costs
reimbursements, expense reimbursements and indemnities, if any, owing in respect
of such Lender's Commitment hereunder at such time shall be paid to such Lender.
SECTION 2.17. Evidence of Debt. (a) Each Lender shall maintain in
-----------------
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Advance owing to
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder. The Borrower
agrees that upon notice by any Lender to the Borrower (with a copy of such
notice to the Administrative Agent) to the effect that a promissory note or
other evidence of indebtedness is required or appropriate in order for such
Lender to evidence (whether for purposes of pledge, enforcement or otherwise)
the Advances owing to, or to be made by, such Lender, the Borrower shall
promptly execute and deliver to such Lender a promissory note or other evidence
of indebtedness, in form and substance reasonably satisfactory to the Borrower
and such Lender (each a "NOTE"), payable to the order of such Lender in a
principal amount equal to the Commitment of such Lender; provided, however, that
the execution and delivery of such promissory note or other evidence of
indebtedness shall not be a condition precedent to the making of any Advance
under this Agreement.
(b) The Register maintained by the Administrative Agent pursuant to Section
8.07(c) shall include a control account, and a subsidiary account for each
Lender, in which accounts (taken together) shall be recorded (i) the date and
amount of each Borrowing made hereunder, the Type of Advances comprising such
Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the
terms of each Assumption Agreement and each Assignment and Acceptance delivered
to and accepted by it, (iii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder,
and (iv) the amount of any sum received by the Administrative Agent from the
Borrower hereunder and each Lender's share thereof.
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(c) Entries made in good faith by the Administrative Agent in the Register
pursuant to subsection (b) above, and by each Lender in its account or accounts
pursuant to subsection (a) above, shall be prima facie evidence of the amount of
principal and interest due and payable or to become due and payable from the
Borrower to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Administrative Agent or such Lender
to make an entry, or any finding that an entry is incorrect, in the Register or
such account or accounts shall not limit or otherwise affect the obligations of
the Borrower under this Agreement.
SECTION 2.18. Use of Proceeds. The proceeds of the Advances shall be
----------------
available (and the Borrower agrees that it shall use such proceeds) to support
the obligations of the Borrower in respect of commercial paper issued by the
Borrower, to finance in part the Transaction, to pay fees and expenses incurred
in connection with the consummation of the Transaction, and/or for other general
corporate purposes of the Borrower and its subsidiaries.
SECTION 2.19. Extension of Termination Date. (a) At least 45 days but
------------------------------
not more than 60 days prior to the Revolver Termination Date in effect at any
time, the Borrower, by written notice to the Administrative Agent, may request
an extension of the Revolver Termination Date in effect at such time for a
period of 364 days from its then scheduled expiration; provided, however, that
the Borrower shall not have made the Term Loan Election for Advances outstanding
on such Revolver Termination Date prior to the then scheduled Revolver
Termination Date. The Administrative Agent shall promptly notify each Lender of
such request, and each Lender shall in turn, in its sole discretion, not earlier
than 30 days but at least 20 days prior to such Revolver Termination Date,
notify the Borrower and the Administrative Agent in writing as to whether such
Lender will consent to such extension. If any Lender shall fail to notify the
Administrative Agent and the Borrower in writing of its consent to any such
request for extension of the Revolver Termination Date at least 20 days prior to
the scheduled occurrence thereof at such time, such Lender shall be deemed to be
a Non-Consenting Lender with respect to such request. The Administrative Agent
shall notify the Borrower not later than 15 days prior to the scheduled Revolver
Termination Date in effect at such time of the decision of the Lenders regarding
the Borrower's request for an extension of the Revolver Termination Date.
(b) If all of the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.19, the Revolver Termination
Date shall, effective as at the Revolver Termination Date otherwise in effect at
such time (the "EXTENSION DATE"), be extended for a period of 364 days from such
Extension Date; provided that on each Extension Date, no Event of Default, or
event that with the giving of notice or passage of time or both would constitute
an Event of Default, shall have occurred and be continuing, or shall occur as a
consequence thereof. If Lenders holding at least a majority in interest of the
aggregate Commitments at such time consent in writing to any such request in
accordance with subsection (a) of this Section 2.19, the Revolver Termination
Date in effect at such time shall, effective as at the applicable Extension
Date, be extended as to those Lenders that so consented (each a "CONSENTING
LENDER") but shall not be extended as to any other Lender (each a "NON-
CONSENTING LENDER"). To the extent that the Revolver Termination Date is not
extended as to any Lender pursuant to this Section 2.19 and the Commitment of
such Lender is not assumed in accordance with subsection (c) of this Section
2.19 on or prior to the applicable Extension Date, the Commitment of such Non-
Consenting Lender shall automatically terminate in whole on such unextended
Revolver Termination Date without any further notice or other action by the
Borrower, such Lender or any other Person;
25
provided that such Non-Consenting Lender's rights under Sections 2.11, 2.14,
8.04 and 8.08, and its obligations under Section 7.05, shall survive the
Revolver Termination Date for such Lender as to matters occurring prior to such
date. It is understood and agreed that no Lender shall have any obligation
whatsoever to agree to any request made by the Borrower for any requested
extension of the Revolver Termination Date.
(c) If Lenders holding at least a majority in interest of the aggregate
Commitments at any time consent to any such request pursuant to subsection (a)
of this Section 2.19, the Borrower may arrange for one or more Consenting
Lenders or other Eligible Assignees (each such Eligible Assignee that accepts an
offer to assume a Non-Consenting Lender's Commitment as of the applicable
Extension Date being an "ASSUMING LENDER") to assume, effective as of the
Extension Date, any Non-Consenting Lender's Commitment and all of the
obligations of such Non-Consenting Lender under this Agreement thereafter
arising, without recourse to or warranty by, or expense to, such Non-Consenting
Lender; provided, however, that the amount of the Commitment of any such
Assuming Lender as a result of such substitution shall in no event be less than
$25,000,000 unless the amount of the Commitment of such Non-Consenting Lender is
less than $25,000,000, in which case such Assuming Lender shall assume all of
such lesser amount; and provided further that:
(i) any such Consenting Lender or Assuming Lender shall have paid to such
Non-Consenting Lender (A) the aggregate principal amount of, and any
interest accrued and unpaid to the effective date of the assignment on, the
outstanding Advances, if any, of such Non-Consenting Lender plus (B) any
accrued but unpaid facility fees owing to such Non-Consenting Lender as of
the effective date of such assignment;
(ii) all additional costs reimbursements, expense reimbursements and
indemnities payable to such Non-Consenting Lender, and all other accrued
and unpaid amounts owing to such Non-Consenting Lender hereunder, as of the
effective date of such assignment shall have been paid to such Non-
Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable processing
and recordation fee required under Section 8.07(a) for such assignment
shall have been paid;
provided further that such Non-Consenting Lender's rights under Sections 2.11,
2.14, 8.04 and 8.08, and its obligations under Section 7.05, shall survive such
substitution as to matters occurring prior to the date of substitution. At
least three Business Days prior to any Extension Date, (A) each such Assuming
Lender, if any, shall have delivered to the Borrower and the Administrative
Agent an assumption agreement, in form and substance satisfactory to the
Borrower and the Administrative Agent (an "ASSUMPTION AGREEMENT"), duly executed
by such Assuming Lender, such Non-Consenting Lender, the Borrower and the
Administrative Agent, (B) any such Consenting Lender shall have delivered
confirmation in writing satisfactory to the Borrower and the Administrative
Agent as to the increase in the amount of its Commitment and (C) each Non-
Consenting Lender being replaced pursuant to this Section 2.19 shall have
delivered to the Administrative Agent any Note or Notes held by such Non-
Consenting Lender. Upon the payment or prepayment of all amounts referred to in
clauses (i), (ii) and (iii) of the immediately preceding sentence, each such
Consenting Lender or Assuming Lender, as of the Extension Date, will be
substituted for such Non-Consenting Lender under this Agreement and shall be a
Lender for all purposes of this Agreement, without any further acknowledgment by
or the consent of
26
the other Lenders, and the obligations of each such Non-Consenting Lender
hereunder shall, by the provisions hereof, be released and discharged.
(d) If all of the Lenders (after giving effect to any assignments pursuant
to subsection (b) of this Section 2.19) consent in writing to a requested
extension (whether by execution or delivery of an Assumption Agreement or
otherwise) not later than one Business Day prior to such Extension Date, the
Administrative Agent shall so notify the Borrower, and, so long as no Event of
Default, or event that with the giving of notice or passage of time or both
would constitute an Event of Default, shall have occurred and be continuing as
of such Extension Date, or shall occur as a consequence thereof, the Revolver
Termination Date then in effect shall be extended for the 364-day period
described in subsection (a) of this Section 2.19, and all references in this
Agreement, and in the Notes, if any, to the " Revolver Termination Date" shall,
with respect to each Consenting Lender and each Assuming Lender for such
Extension Date, refer to the Revolver Termination Date as so extended. Promptly
following each Extension Date, the Administrative Agent shall notify the Lenders
(including, without limitation, each Assuming Lender) of the extension of the
scheduled Revolver Termination Date in effect immediately prior thereto and
shall thereupon record in the Register the relevant information with respect to
each such Consenting Lender and each such Assuming Lender.
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 3.01. Condition Precedent to Effectiveness of Section 2.01.
----------------------------------------------------
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "EFFECTIVE DATE") on which all of the following conditions precedent
have been satisfied or waived in accordance with Section 8.01:
(a) the Administrative Agent shall have received on or before the Effective
Date the following, each dated the Effective Date, in form and substance
satisfactory to the Administrative Agent: (i) certified copies of the
resolutions of the Board of Directors of the Borrower or the Executive
Committee of such Board authorizing the execution and delivery of this
Agreement, and approving all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to this Agreement
and the Transaction; (ii) a certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the name and true signature of the
officer of the Borrower executing this Agreement on its behalf; (iii) a
copy of the Joint Proxy Statement most recently mailed to the shareholders
of Disney and the stockholders of Capital Cities/ABC; (iv) the Disney
Agreement, in substantially the form of Exhibit E hereto, duly executed and
delivered by Disney and the Borrower; (v) an opinion of David K. Thompson,
Esq., Senior Vice President-Assistant General Counsel of the Borrower and
Disney, in substantially the form of Exhibit C-1 hereto; (vi) an opinion of
Dewey Ballantine, special counsel for Disney in connection with the
Transaction, in substantially the form of Exhibit C-2 hereto; and (vii) an
opinion of Shearman & Sterling, counsel for the Administrative Agent.
(b) each of the Mergers shall have been consummated substantially in
accordance with the terms of the Reorganization Agreement and in compliance
with all applicable laws.
27
(c) all consents and approvals of any governmental or regulatory authority
and any other third party necessary in connection with this Agreement or
the consummation of the Transaction shall have been obtained; all related
material filings required to be made prior to the consummation of the
Transaction shall have been made and, in each case, shall remain in effect;
and all applicable waiting periods in connection with the consummation of
the Transaction shall have expired without any adverse action being taken
by any competent governmental or regulatory authority that could reasonably
be expected to have a material adverse effect on the business, financial
condition or operations of the Borrower and its subsidiaries, taken as a
whole.
(d) there shall have occurred no material adverse change in the business,
financial condition or operations of Disney and its subsidiaries, taken as
a whole, since September 30, 1994, except as disclosed in periodic or other
reports filed by Disney and its subsidiaries during the period from
September 30, 1994 to the date of this Agreement pursuant to Section 13 of
the Securities Exchange Act of 1934, as amended, copies of which have been
furnished to the Lenders prior to the date of this Agreement.
(e) each of Disney and Capital Cities/ABC shall have paid or prepaid all
amounts owing under the Existing Credit Agreement to which it is a party,
and all commitments of the lenders thereunder shall have been terminated.
(f) all of the representations and warranties contained in Section 4.01
shall be correct in all material respects on and as of the Effective Date,
before and after giving effect to such date, as though made on and as of
the Effective Date (except to the extent that such representations and
warranties relate to an earlier date, which representations and warranties
shall have been correct in all material respects on and as of such earlier
date).
(g) no event shall have occurred and be continuing, or shall result from
the occurrence of the Effective Date, that constitutes an Event of Default
or would constitute an Event of Default but for the requirement that notice
be given or time elapse or both.
SECTION 3.02. Conditions Precedent to Each Borrowing. The obligation of
---------------------------------------
each Lender to make an Advance on the occasion of each Borrowing (including the
initial Borrowing) shall be subject to the further conditions precedent that the
Effective Date shall have occurred and on the date of such Borrowing the
following statements shall be true (and each of the giving of the applicable
Notice of Borrowing and the acceptance by the Borrower of the proceeds of such
Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Borrowing such statements are true):
(a) the representations and warranties contained in Section 4.01 are
correct in all material respects on and as of the date of such Borrowing,
before and after giving effect to such Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date (except to
the extent that such representations and warranties relate to an earlier
date, which representations and warranties were correct in all material
respects on and as of such earlier date); and
28
(b) no event has occurred and is continuing, or would result from such
Borrowing or from the application of the proceeds therefrom, which
constitutes an Event of Default or would constitute an Event of Default but
for the requirement that notice be given or time elapse or both.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
-----------------------------------------------
Borrower represents and warrants as of the Effective Date and from time to time
thereafter as required under this Agreement as follows:
(a) The Borrower is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. The Borrower and
each of the Significant Subsidiaries are duly qualified and in good
standing as foreign corporations authorized to do business in each
jurisdiction (other than the jurisdiction of its incorporation) in which
the nature of their respective activities or the character of the
properties they own or lease make such qualification necessary and in which
the failure so to qualify would have a material adverse effect on the
financial condition or operations of the Borrower and its subsidiaries,
taken as a whole.
(b) The execution, delivery and performance by the Borrower of this
Agreement and each of the Notes, if any, delivered hereunder are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Borrower's charter or by-
laws or (ii) any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award or any material contractual restriction
binding on or affecting the Borrower, Disney or Capital Cities/ABC; no
authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required for the due
execution, delivery and performance by the Borrower of this Agreement; and
this Agreement is and each of the Notes, when delivered hereunder, will be
the legal, valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with their respective terms, subject to
applicable bankruptcy, reorganization, insolvency, moratorium or similar
laws affecting creditors' rights generally and general principles of
equity.
(c) (i) At any time prior to the date on which the Borrower first delivers
the audited financial statements of the Borrower and its subsidiaries
pursuant to Section 5.01(d)(ii), Disney's most recent annual report on Form
10-K containing the consolidated balance sheet of Disney and its
subsidiaries, and the related consolidated statements of income and of cash
flows of Disney and its subsidiaries, copies of which have been furnished
to each Lender prior to the Effective Date, fairly present the consolidated
financial condition of Disney and its subsidiaries as at the date of such
balance sheet and the consolidated results of operations of Disney and its
subsidiaries for the fiscal year ended on such date, all in accordance with
generally accepted accounting principles consistently applied, and (ii) at
any time thereafter, the Borrower's most recent annual report on Form 10-K
containing the consolidated balance sheet of the Borrower and its
subsidiaries, and the related consolidated statements of income and of cash
flows of the Borrower and its subsidiaries, copies of which have been
furnished to each Lender pursuant to Section
29
5.01(d)(ii), fairly present the consolidated financial condition of the
Borrower and its subsidiaries as at the date of such balance sheet and the
consolidated results of operations of the Borrower and its subsidiaries for
the fiscal year ended on such date, all in accordance with generally
accepted accounting principles consistently applied.
(d) There is no pending or, to the Borrower's knowledge, threatened claim,
action or proceeding affecting the Borrower or any of its subsidiaries
which could reasonably be expected to adversely affect the financial
condition or operations of the Borrower and its subsidiaries, taken as a
whole, or which could reasonably be expected to affect the legality,
validity or enforceability of this Agreement; and to the Borrower's
knowledge, the Borrower and each of its subsidiaries have complied, and are
in compliance, with all applicable laws, rules, regulations, permits,
orders, consent decrees and judgments, except for any such matters which
have not had, and would not reasonably be expected to have, a material
adverse effect on the financial condition or operations of the Borrower and
its subsidiaries, taken as a whole.
(e) The Borrower and the ERISA Affiliates have not incurred and are not
reasonably expected to incur any material liability in connection with
their Single Employer Plans or Multiple Employer Plans, other than ordinary
liabilities for benefits; neither the Borrower nor any ERISA Affiliate has
incurred or is reasonably expected to incur any material withdrawal
liability (as defined in Part I of Subtitle E of Title IV of ERISA) to any
Multiemployer Plan; and no Multiemployer Plan of the Borrower or any ERISA
Affiliate is reasonably expected to be in reorganization or to be
terminated, within the meaning of Title IV of ERISA.
SECTION 4.02. Additional Representations and Warranties of the Borrower as
------------------------------------------------------------
of Each Extension Date. The Borrower represents and warrants on each Extension
- -----------------------
Date (and at no other time) that, as of each such date, the following statements
shall be true:
(a) there has been no material adverse change in the business, financial
condition or operations of (i) Disney and its subsidiaries, taken as a
whole, since September 30, 1994 (except as disclosed in periodic or other
reports filed by Disney and its subsidiaries pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended, during the period from
September 30, 1994 to the date of the request for an extension of the
Revolver Termination Date then in effect related to such Extension Date),
in the case of any Extension Date occurring prior to the first delivery of
financial statements of the Borrower and its subsidiaries pursuant to
Section 5.01(d)(ii), or (ii) the Borrower and its subsidiaries, taken as a
whole, since the date of the most recently delivered audited financial
statements of the Borrower and its subsidiaries pursuant to Section
5.01(d)(ii) (except as disclosed in periodic or other reports filed by the
Borrower and its subsidiaries pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended, during the period from the date of the
most recently delivered audited financial statements of the Borrower and
its subsidiaries pursuant to Section 5.01(d)(ii) to the date of the request
for an extension of the Revolver Termination Date then in effect related to
such Extension Date), in the case of each Extension Date occurring at any
time thereafter; and
(b) the representations and warranties contained in Section 4.01 are
correct in all material respects on and as of such date, as though made on
and as of such date (except to the
30
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).
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants . So long as any Advance shall remain
----------------------
unpaid or any Lender shall have any Commitment hereunder, the Borrower will,
unless the Majority Lenders shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its subsidiaries
-------------------------
to comply, in all material respects with all applicable laws, rules,
regulations, permits, orders, consent decrees and judgments binding on the
Borrower and its subsidiaries the failure with which to comply would have a
material adverse effect on the financial condition or operations of the
Borrower and its subsidiaries, taken as a whole.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
---------------------
subsidiaries to pay and discharge, before the same shall become delinquent,
if the failure to so pay and discharge would have a material adverse effect
on the financial condition or operations of the Borrower and its
subsidiaries, taken as a whole, (i) all taxes, assessments and governmental
charges or levies imposed upon it or upon its property, and (ii) all lawful
claims which, if unpaid, will by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its subsidiaries
shall be required to pay or discharge any such tax, assessment, charge,
levy or claim which is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained in
accordance with GAAP.
(c) Preservation of Corporate Existence, Etc. Subject to Section 5.02(a),
----------------------------------------
preserve and maintain, and cause each of Disney and Capital Cities/ABC to
preserve and maintain, its corporate existence, rights (charter and
statutory) and franchises; provided, however, that none of the Borrower,
Disney or Capital Cities/ABC shall be required to preserve any right or
franchise if the loss thereof would not have a material adverse effect on
the business, financial condition or operations of the Borrower and its
subsidiaries, taken as a whole; and provided further, however, that neither
Disney nor Capital Cities/ABC shall be required to preserve its corporate
existence if the loss thereof would not have a material adverse effect on
the business, financial condition or operations of the Borrower and its
subsidiaries, taken as a whole.
(d) Reporting Requirements. Furnish to the Administrative Agent, on behalf
----------------------
of the Lenders:
(i) as soon as available and in any event within 50 days after the end of
each of the first three quarters of each fiscal year of the Borrower,
the Borrower's quarterly report to shareholders on Form 10-Q as filed
with the Securities and Exchange Commission (the "SEC") or, if the
Borrower is not filing such quarterly report with the SEC at such
time, each of Disney's and (as soon as available thereafter) Capital
Cities/ABC's quarterly report to shareholders on Form 10-Q as and only
to the extent
31
otherwise filed with the SEC, in each case containing a consolidated
balance sheet of the Borrower and its subsidiaries (or Disney and its
subsidiaries and Capital Cities/ABC and its subsidiaries, as the case
may be) as of the end of such quarter and consolidated statements of
income and of cash flows of the Borrower and its subsidiaries (or
Disney and its subsidiaries and Capital Cities/ABC and its
subsidiaries, as the case may be) 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 stating that no Event of Default, or event
that with the giving of notice or passage of time or both, would
constitute an Event of Default, has occurred and is continuing;
(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 or,
if the Borrower is not filing such annual report with the SEC at such
time, each of Disney's and (as soon as available thereafter) Capital
Cities/ABC's annual report to shareholders on Form 10-K as and only to
the extent otherwise filed with the SEC, in each case containing
consolidated financial statements of the Borrower and its subsidiaries
(or Disney and its subsidiaries and Capital Cities/ABC and its
subsidiaries, as the case may be) 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
stating that no Event of Default, or event that with the giving of
notice or passage of time or both would constitute an Event of
Default, has occurred and is continuing;
(iii) promptly after the Borrower obtains actual knowledge of the
occurrence of each Event of Default, and each event that with the
giving of notice or passage of time or both would constitute an Event
of Default, a statement of any of the Borrower's Chairman of the Board
of Directors, President, Chief Financial Officer, Treasurer, Assistant
Treasurer or Controller setting forth details of such Event of Default
or event continuing on the date of such statement, and the action
which the Borrower has taken and proposes to take with respect
thereto;
(iv) promptly after the commencement thereof, notice of any actions, suits
and proceedings before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or
foreign, affecting the Borrower or any of its subsidiaries of the type
described in Section 4.01(d);
(v) promptly after the Borrower obtains actual knowledge thereof, written
notice of any pending or threatened Environmental Claim against the
Borrower or any of its subsidiaries or any of their respective
properties which could reasonably be expected to materially and
adversely affect the financial condition or operations of the Borrower
and its subsidiaries, taken as a whole;
(vi) promptly after the Borrower obtains actual knowledge of the occurrence
of any ERISA Event which could reasonably be expected to materially
and adversely
32
affect the financial condition or operations of the Borrower and its
subsidiaries, taken as a whole, a statement of any of the Borrower's
Chairman of the Board of Directors, President, Chief Financial
Officer, Treasurer, Assistant Treasurer or Controller describing such
ERISA Event and the action, if any, which the Borrower has taken and
proposes to take with respect thereto;
(vii) promptly after receipt thereof by the Borrower or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, a copy of each
notice received by the Borrower or any ERISA Affiliate concerning (A)
the imposition of withdrawal liability (as defined in Part I of
Subtitle E of Title IV of ERISA) by a Multiemployer Plan, which
withdrawal liability could reasonably be expected to materially and
adversely affect the financial condition or operations of the Borrower
and its subsidiaries, taken as a whole, (B) the reorganization or
termination, within the meaning of Title IV of ERISA, of any
Multiemployer Plan, which reorganization or termination could
reasonably be expected to materially adversely affect the financial
condition or operations of the Borrower and its subsidiaries, taken as
a whole, or (C) the amount of liability incurred, or which may be
incurred, by the Borrower or any ERISA Affiliate in connection with
any event described in subclause (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 Administrative Agent may from time to time
reasonably request.
SECTION 5.02. Negative Covenant. So long as any Advance shall remain
------------------
unpaid or any Lender shall have any Commitment hereunder, the Borrower will not,
without the written consent of the Majority Lenders:
(a) Mergers, Etc. Merge or consolidate with or into, or convey, transfer,
------------
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of the assets of the Borrower and
its subsidiaries, taken as a whole (whether now owned or hereafter
acquired), to, any Person, or permit any of its subsidiaries to do so,
unless immediately after giving effect to such proposed transaction, no
Event of Default or event that 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 and under the Notes, if any, in
an agreement or instrument reasonably satisfactory in form and substance to
the Majority Lenders.
33
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("EVENTS OF
------------------
DEFAULT") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance when the
same becomes due and payable; or the Borrower shall fail to pay any
interest on any Advance or any fee or other amount payable under this
Agreement, in each case within three Business Days after such interest, fee
or other amount becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein or by the
Borrower (or any of its officers) delivered in writing and identified as
delivered in connection with this Agreement shall prove to have been
incorrect in any material respect when made; or
(c) The Borrower shall fail to perform or observe any covenant contained in
Section 5.01(d)(iii) or Section 5.02; or
(d) The Borrower shall fail to perform or observe any other term, covenant
or agreement contained in this Agreement on its part to be performed or
observed if the failure to perform or observe such other term, covenant or
agreement shall remain unremedied for 30 days after written notice thereof
shall have been given to the Borrower by the Administrative Agent or any
Lender; or
(e) The Borrower or any of its subsidiaries shall fail to pay any principal
of or premium or interest on any Debt which is outstanding in a principal
amount of at least $250,000,000 in the aggregate (but excluding Debt
arising hereunder) of the Borrower or such subsidiary (as the case may be),
when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such failure
(i) shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt and (ii) shall not have
been cured or waived; or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such Debt and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt; or
any such Debt shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment),
redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or
defease such Debt shall be required to be made, in each case prior to the
stated maturity thereof; or
(f) The Borrower or any Material Subsidiary shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for the benefit
of creditors; or any proceeding shall be instituted by or against the
Borrower or any Material Subsidiary seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any
law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of
34
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 Material Subsidiary shall
take any corporate action to authorize any of the actions set forth above
in this subsection (f); or
(g) Any money judgment, writ or warrant of attachment or similar process
against the Borrower, any Material Subsidiary or any of their respective
assets involving in any case an amount in excess of $100,000,000 is entered
and shall remain undischarged, unvacated, unbonded or unstayed for a period
of 30 days or, in any case, within five days of any pending sale or
disposition of any asset pursuant to any such process;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Majority Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Majority Lenders, by notice to the Borrower,
declare the Advances, all interest thereon and all other amounts payable under
this Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. (a) Each Lender hereby appoints
-------------------------
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement of this Agreement or
collection of the Advances), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Majority Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that the Administrative Agent shall not be required to take
any action which exposes the Administrative Agent to personal liability or which
is contrary to this Agreement or applicable law. The Administrative Agent
agrees to give to each Lender prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
35
(b) The Co-Administrative Agent shall have no duties under this Agreement
other than those afforded to it in its capacity as a Lender, and each Lender
hereby acknowledges that the Co-Administrative Agent has no liability under this
Agreement other than those assumed by it in its capacity as a Lender.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither the
------------------------------------
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable to any Lender for any action taken or omitted to be taken by it
or them under or in connection with this Agreement, except for its or their own
gross negligence or willful misconduct. Without limitation of the generality of
the foregoing, the Administrative Agent: (i) may treat the Lender which made any
Advance as the holder of the Debt resulting therefrom until the Administrative
Agent receives and accepts an Assumption Agreement entered into by an Assuming
Lender as provided in Section 2.19, or an Assignment and Acceptance entered into
by such Lender, as assignor, and an Eligible Assignee, as assignee, as provided
in Section 8.07; (ii) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of the Borrower
or to inspect the property (including the books and records) of the Borrower;
(v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 7.03. CUSA and Affiliates. With respect to its Commitment and
--------------------
the Advances made by it and any Note or Notes issued to it, CUSA shall have the
same rights and powers under this Agreement as any other Lender and may exercise
the same as though it were not the Administrative Agent; and the term "Lender"
or "Lenders" shall, unless otherwise expressly indicated, include CUSA in its
individual capacity. CUSA and its respective Affiliates may accept deposits
from, lend money to, act as trustee under indentures of, accept investment
banking engagements from, and generally engage in any kind of business with, the
Borrower, any of its subsidiaries and any Person who may do business with or own
securities of the Borrower or any such subsidiary, all as if CUSA was not the
Administrative Agent and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it
-----------------------
has, independently and without reliance upon the Administrative Agent or any
other Lender and based on the financial statements referred to in Section
4.01(c)(i) and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement.
36
SECTION 7.05. Indemnification. The Lenders agree to indemnify the
----------------
Administrative Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of Advances then owing to each of
them (or if no Advances are at the time outstanding or if any Advances are then
owing to Persons which are not Lenders, ratably according to the respective
amounts of their Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or any action taken or omitted by
the Administrative Agent under this Agreement; provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Administrative
Agent promptly upon demand for its ratable share of any out-of-pocket expenses
(including reasonable counsel fees) incurred by the Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal or
bankruptcy proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Administrative
Agent is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Administrative Agent. The Administrative Agent
-------------------------------
may resign at any time by giving written notice thereof to the Lenders and the
Borrower and such resignation shall be effective upon the appointment of a
successor Administrative Agent as provided herein. Upon any such resignation,
the Majority Lenders shall have the right to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Majority Lenders, and shall have accepted such appointment, within 30 days after
the retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent. Any successor Administrative Agent appointed hereunder
shall be a commercial bank organized or licensed under the laws of the United
States or of any State thereof, or an Affiliate of any such commercial bank,
having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision
---------------
of this Agreement, nor consent to any departure by the Borrower therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Majority Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders (other than the Borrower or any of its Affiliates, if
a Lender, at the time of any such amendment, waiver
37
or consent), do any of the following: (a) waive any of the conditions specified
in Section 3.01 or 3.02, (b) increase the Commitments of the Lenders 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
(other than as provided in Sections 2.05 and 2.19), (e) change the percentage of
the Commitments or of the aggregate unpaid principal amount of Advances, or the
number of Lenders, which shall be required for the Lenders or any of them to
take any action hereunder or (f) amend this Section 8.01; and provided, further,
that no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any Note.
SECTION 8.02. Notices, Etc. (a) All notices and other communications
------------
provided for hereunder shall be, except as otherwise expressly provided for
herein, in writing (including telecopier, telegraphic or telex communication)
and mailed, telecopied, telegraphed, telexed or delivered, if to the Borrower,
at its address at:
The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521
Attention: 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 Assumption Agreement or the Assignment and Acceptance
pursuant to which it became a Lender, as the case may be; and if to the
Administrative Agent, at its address at:
Citicorp USA, Inc.
One Court Square
Long Island City, New York 11120
Attention: Kim Coley
Telecopy Number: (718) 248-4844
with a copy to:
Citicorp Securities, Inc.
One Sansome Street
San Francisco, California 94104
Attention: Mark Wilson
Telecopy Number: (415) 627-6355;
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and communications
shall, when mailed, telecopied, telegraphed or telexed, be effective when
deposited in the mails, telecopied, delivered to the telegraph company or
confirmed by telex answerback, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II or VII shall
not be effective until received by the
38
Administrative Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or of any Exhibit hereto
to be executed and delivered hereunder shall be effective as delivery of a
manually executed counterpart thereof.
(b) If any notice required under this Agreement is permitted to be
made, and is made, by telephone, actions taken or omitted to be taken in
reliance thereon by the Administrative Agent or any Lender shall be binding upon
the Borrower notwithstanding any inconsistency between the notice provided by
telephone and any subsequent writing in confirmation thereof provided to the
Administrative Agent or such Lender; provided that any such action taken or
omitted to be taken by the Administrative Agent or such Lender shall have been
in good faith and in accordance with the terms of this Agreement.
SECTION 8.03. No Waiver; Remedies No failure on the part of any
--------------------
Lender or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay
-------------------
within five Business Days of demand all actual and reasonable costs and
expenses, if any (including, without limitation, actual and reasonable counsel
fees and expenses), of the Administrative Agent and each Lender in connection
with the enforcement (whether through legal proceedings or otherwise) of this
Agreement and the other instruments and documents to be delivered hereunder,
including, without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this Section 8.04(a).
(b) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made other than on the last day of the Interest Period for such
Advance, as a result of a payment or Conversion pursuant to Section 2.08(f) or
2.10 or acceleration of the maturity of the Advances pursuant to Section 6.01 or
for any other reason (other than by reason of a payment pursuant to Section
2.12), the Borrower shall, within five Business Days of demand by any Lender
(with a copy of such demand to the Administrative Agent), pay to such Lender any
amounts required to compensate such Lender for any additional losses, costs or
expenses which it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss, cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund or maintain such Advance.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during
-----------------
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Advances due and payable pursuant to the
provisions of Section 6.01, each Lender (and, in the case of CUSA, Citibank) is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final, but excluding trust accounts) at any time
held and other indebtedness at any time owing by such Lender (and, in the case
of CUSA, Citibank) to or for the credit or the account of the Borrower against
any and all of the obligations of the Borrower now or hereafter existing under
this Agreement, whether or not such Lender shall have made any demand under this
Agreement. Each Lender agrees promptly to notify the Borrower after any such
set-off and application made by such Lender (and, in the case of CUSA,
Citibank); provided that the failure to give
39
such notice shall not affect the validity of such set-off and application. The
rights of each Lender (and, in the case of CUSA, Citibank) under this Section
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) which such Lender may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
---------------
(other than Section 2.01, which shall only become effective upon satisfaction of
the conditions precedent set forth in Section 3.01) when it shall have been
executed by the Borrower, the Administrative Agent and the Co-Administrative
Agent and when the Administrative Agent shall have been notified by each Initial
Lender that such Initial Lender has executed it and, thereafter, shall be
binding upon and inure to the benefit of the Borrower, the Administrative Agent
and the Co-Administrative Agent and each Lender and their respective successors
and permitted assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may
-------------------------------
and, if requested by the Borrower upon notice by the Borrower delivered to such
Lender and the Administrative Agent pursuant to clause (ii) of Section 2.16,
will, assign to one or more Eligible Assignees all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it and any Note or Notes held
by it); provided, however, that (i) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations under this
Agreement, (ii) the sum of (A) the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment and (B) the amount of the
commitment of the Person that is such assigning Lender being contemporaneously
assigned under the Five-Year Credit Agreement (in both cases determined as of
the date of the Assignment and Acceptance or similar agreement with respect to
such assignments) shall in no event be less than $25,000,000 in the aggregate,
provided, however, that if the aggregate amount of the Commitment of such
assigning Lender hereunder and its commitment under the Five-Year Credit
Agreement is less than $25,000,000 on the date of such proposed assignments,
such assigning Lender may assign all, but not less than all of, its remaining
rights and obligations under this Agreement and the Five-Year Credit Agreement,
(iii) each such assignment shall be to an Eligible Assignee, and (iv) the
parties to each such assignment (other than the Borrower) shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with a processing and
recordation fee of $3,000. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights (other than any rights such
Lender assignor may have under Sections 2.11, 2.14 and 8.08) and be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(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,
40
enforceability, genuineness, sufficiency or value of this Agreement or any
instrument or document furnished pursuant hereto; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or any of its subsidiaries or the
performance or observance by the Borrower or Disney of any of its obligations
under this Agreement or any instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in Section
4.01(c)(i) and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Administrative Agent by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to
in Section 8.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the Advances owing
to, each Lender from time to time (the "REGISTER"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee
and, if applicable, the Borrower, together with any Note subject to such
assignment, the Administrative Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Exhibit B hereto, (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment and
the Advances owing to it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment hereunder)
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and (iv) such Lender shall not agree in any
participation agreement with any participant or proposed participant to obtain
the consent of such participant before agreeing to the amendment, modification
or waiver of any of the terms of this Agreement or any Note, before consenting
to any action or failure to act by the Borrower or any other party hereunder or
under any Note, or before exercising any rights it may have in respect thereof,
unless such amendment, modification, waiver, consent or exercise would (A)
increase the amount of such participant's portion of such Lender's
41
Commitment, (B) reduce the principal amount of or rate of interest on the
Advances or any fee or other amounts payable hereunder to which such participant
would be entitled to receive a share under such participation agreement, or (C)
postpone any date fixed for any payment of principal of or interest on the
Advances or any fee or other amounts payable hereunder to which such participant
would be entitled to receive a share under such participation agreement.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 8.07, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower furnished to such Lender by or on behalf of
the Borrower in writing and directly related to the transactions contemplated
hereunder; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any confidential information relating to the Borrower
received by it from such Lender in accordance with the terms of Section 8.09.
(g) No participation or assignment hereunder shall be made in
violation of the Securities Act of 1933, as amended from time to time, or any
applicable state securities laws, and each Lender hereby represents that it will
make any Advance for its own account in the ordinary course of its business and
not with a view to the public distribution or sale thereof.
(h) Anything in this Agreement to the contrary notwithstanding, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and any Note issued to it hereunder) in favor of any Federal Reserve Bank
in accordance with Regulation A of the Board of Governors of the Federal Reserve
System (or any successor regulation thereto) and the applicable operating
circular of such Federal Reserve Bank.
SECTION 8.08. Indemnification . The Borrower agrees to indemnify and
----------------
hold harmless the Administrative Agent, the Co-Administrative Agent and each
Lender and each of their Affiliates and their respective officers, directors,
employees, agents and advisors (each an "INDEMNIFIED PARTY") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted against any Indemnified Party, in each case arising out
of or in connection with or by reason of, or in connection with the preparation
for a defense of, any investigation, litigation or proceeding (whether or not an
Indemnified Party is a party thereto) arising out of, related to or in
connection with the Commitments hereunder or the Advances made pursuant hereto
or any transactions done in connection herewith, including, without limitation,
any transaction in which any proceeds of the Advances are, or are proposed, to
be applied (collectively, the "INDEMNIFIED MATTERS"); provided that the Borrower
shall have no obligation to any Indemnified Party under this Section 8.08 with
respect to (i) matters for which such Indemnified Party has been reimbursed by
or on behalf of the Borrower pursuant to any other provision of this Agreement,
but only to the extent of such reimbursement, or (ii) Indemnified Matters found
by a court of competent jurisdiction to have resulted from the willful
misconduct or gross negligence of such Indemnified Party. If any action is
brought against any Indemnified Party, such Indemnified Party shall promptly
notify the Borrower in writing of the institution of such action and the
Borrower shall thereupon have the right, at its option, to elect to assume the
defense of such action; provided, however, that the Borrower shall not, in
assuming the defense of any Indemnified Party in any Indemnified Matter, agree
to any dismissal or settlement of such Indemnified Matter without the prior
written consent of such Indemnified Party, which consent shall not be
unreasonably withheld, if such dismissal or settlement (A) would require any
42
admission or acknowledgement of culpability or wrongdoing by such Indemnified
Party or (B) would provide for any nonmonetary relief to any Person to be
performed by such Indemnified Party. If the Borrower so elects, it shall
promptly assume the defense of such action, including the employment of counsel
(reasonably satisfactory to such Indemnified Party) and payment of expenses.
Such Indemnified Party shall have the right to employ its or their own counsel
in any such case, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party unless (1) the employment of such counsel
shall have been authorized in writing by the Borrower in connection with the
defense of such action or (2) the Borrower shall not have properly employed
counsel reasonably satisfactory to such Indemnified Party to have charge of the
defense of such action, in which case such fees and expenses shall be paid by
the Borrower. If an Indemnified Party shall have reasonably concluded (based
upon the advice of counsel) that the representation by one counsel of such
Indemnified Party and the Borrower creates a conflict of interest for such
counsel, the reasonable fees and expenses of such counsel shall be borne by the
Borrower and the Borrower shall not have the right to direct the defense of such
action on behalf of such Indemnified Party (but shall retain the right to direct
the defense of such action on behalf of the Borrower). Anything in this Section
8.08 to the contrary notwithstanding, the Borrower shall not be liable for the
fees and expenses of more than one counsel for any Indemnified Party in any
jurisdiction as to any Indemnified Matter or, except as specified in the second
sentence of this Section 8.08, for any settlement of any Indemnified Matter
effected without its written consent. All obligations of the Borrower under
this Section 8.08 shall survive the making and repayment of the Advances and the
termination of this Agreement.
SECTION 8.09. Confidentiality . Subject to the provisions of Section
----------------
8.07(f), each Lender shall, and shall instruct its Affiliates, successors,
assigns, advisors, officers, employees, directors, agents, legal counsel and
other professional advisors (the "INFORMED PARTIES") to, hold all nonpublic
information obtained pursuant to this Agreement in accordance with its customary
procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices and in any event may make
disclosure reasonably required by a bona fide transferee or participant in
connection with the contemplated transfer or participation or to another Lender
or an Informed Party agreeing to hold such nonpublic information as confidential
or as required or requested by law or to any governmental authority or
representative thereof or pursuant to legal process; provided that unless
specifically prohibited by applicable law or court order, each Lender shall
notify the Borrower of any request by any governmental authority or
representative thereof (other than any such request in connection with an
examination of the financial condition of such Lender by such governmental
authority) for disclosure of any such nonpublic information prior to disclosure
of such information; and 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 114 Fifth Avenue, New
York, New York 10011 (or at such other address in the Borough of Manhattan in
the State of New York as the Borrower shall notify the Administrative
43
Agent from time to time) and, if the Borrower ever ceases to maintain such
office in the Borough of Manhattan, irrevocably designates and appoints CT
Corporation System, 1633 Broadway, New York, New York 10019, or any other
address in the State of New York communicated by CT Corporation System to the
Administrative Agent, as its agent to receive on its behalf service of all
process in any such proceeding in any such court, such service being hereby
acknowledged by the Borrower to be effective and binding service in every
respect.
SECTION 8.11. Governing Law . This Agreement shall be governed by,
--------------
and construed in accordance with, the laws of the State of New York.
SECTION 8.12. Execution in Counterparts . This Agreement may be
--------------------------
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement. A full set of executed counterparts of this
Agreement shall be lodged with the Administrative Agent and the Borrower.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE BORROWER
------------
DC HOLDCO, INC.
By:_________________________________________
Title:______________________________________
THE ADMINISTRATIVE AGENT
------------------------
CITICORP USA, INC.,
as Administrative Agent
By:_________________________________________
Title:______________________________________
THE CO-ADMINISTRATIVE AGENT
---------------------------
CREDIT SUISSE,
as Co-Administrative Agent
By:_________________________________________
Title:______________________________________
44
THE INITIAL LENDERS
-------------------
Commitment
- ----------
$189,583,333.40 CITICORP USA, INC.
By:_________________________________________
Title:______________________________________
$189,583,333.40 CREDIT SUISSE
By:_________________________________________
Title:______________________________________
$180,833,333.33 ABN AMRO N.V.
By:_________________________________________
Title:______________________________________
By:_________________________________________
Title:______________________________________
$180,833,333.33 BANKERS TRUST COMPANY
By:_________________________________________
Title:______________________________________
$180,833,333.33 BANK OF AMERICA NT&SA
By:_________________________________________
Title:______________________________________
$180,833,333.33 BANK OF MONTREAL
By:_________________________________________
Title:______________________________________
45
$180,833,333.33 THE BANK OF NEW YORK
By:_________________________________________
Title:______________________________________
$180,833,333.33 THE BANK OF NOVA SCOTIA
By:_________________________________________
Title:______________________________________
$180,833,333.33 BANQUE NATIONALE DE PARIS
By:_________________________________________
Title:______________________________________
$180,833,333.33 BANQUE PARIBAS
By:_________________________________________
Title:______________________________________
$180,833,333.33 BARCLAYS BANK PLC
By:_________________________________________
Title:______________________________________
$180,833,333.33 THE CHASE MANHATTAN BANK, N.A.
By:_________________________________________
Title:______________________________________
$180,833,333.33 CHEMICAL BANK
By:_________________________________________
Title:______________________________________
46
$180,833,333.33 COMMERZBANK AG, LOS ANGELES
BRANCH
By:_________________________________________
Title:______________________________________
By:_________________________________________
Title:______________________________________
$180,833,333.33 THE DAI-ICHI KANGYO BANK, LTD.
LOS ANGELES AGENCY
By:_________________________________________
Title:______________________________________
$180,833,333.33 DEUTSCHE BANK AG, LOS ANGELES
AND/OR CAYMAN ISLAND BRANCHES
By:_________________________________________
Title:______________________________________
$180,833,333.33 FIRST INTERSTATE BANK OF
CALIFORNIA
By:_________________________________________
Title:______________________________________
By:_________________________________________
Title:______________________________________
$180,833,333.33 THE FIRST NATIONAL BANK
OF CHICAGO
By:_________________________________________
Title:______________________________________
$180,833,333.33 THE FUJI BANK, LIMITED,
LOS ANGELES AGENCY
By:_________________________________________
Title:______________________________________
47
$180,833,333.33 THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By:_________________________________________
Title:______________________________________
$180,833,333.33 THE LONG-TERM CREDIT BANK
OF JAPAN, LTD., LOS ANGELES AGENCY
By:_________________________________________
Title:______________________________________
$180,833,333.33 MELLON BANK, N.A.
By:_________________________________________
Title:______________________________________
$180,833,333.33 THE MITSUBISHI BANK, LTD.,
LOS ANGELES BRANCH
By:_________________________________________
Title:______________________________________
$180,833,333.33 THE MITSUI TRUST & BANKING CO., LTD.
By:_________________________________________
Title:______________________________________
$180,833,333.33 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By:_________________________________________
Title:______________________________________
$180,833,333.33 NATIONSBANK OF TEXAS, N.A.
By:_________________________________________
Title:______________________________________
48
$180,833,333.33 ROYAL BANK OF CANADA
By:_________________________________________
Title:______________________________________
$180,833,333.33 THE SAKURA BANK, LIMITED
By:_________________________________________
Title:______________________________________
By:_________________________________________
Title:______________________________________
$180,833,333.33 THE SANWA BANK, LIMITED
By:_________________________________________
Title:______________________________________
$180,833,333.33 SOCIETE GENERALE
By:_________________________________________
Title:______________________________________
$180,833,333.33 THE SUMITOMO BANK, LIMITED
By:_________________________________________
Title:______________________________________
$180,833,333.33 THE SUMITOMO TRUST & BANKING
CO., LTD., LOS ANGELES AGENCY
By:_________________________________________
Title:______________________________________
$180,833,333.33 SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION
By:_________________________________________
Title:______________________________________
49
$180,833,333.33 SWISS BANK CORPORATION,
SAN FRANCISCO BRANCH
By:_________________________________________
Title:______________________________________
$180,833,333.33 TORONTO DOMINION (TEXAS), INC.
By:_________________________________________
Title:______________________________________
$180,833,333.33 UNION BANK
By:_________________________________________
Title:______________________________________
$180,833,333.33 UNION BANK OF SWITZERLAND,
LOS ANGELES BRANCH
By:_________________________________________
Title:______________________________________
By:_________________________________________
Title:______________________________________
$58,333,333.33 BARNETT BANK OF CENTRAL
FLORIDA, N.A.
By:_________________________________________
Title:______________________________________
$58,333,333.33 THE DAIWA BANK, LTD.,
LOS ANGELES AGENCY
By:_________________________________________
Title:______________________________________
$58,333,333.33 FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By:_________________________________________
Title:______________________________________
50
$58,333,333.33 WACHOVIA BANK OF GEORGIA, N.A.
By:_________________________________________
Title:______________________________________
$58,333,333.33 THE YASUDA TRUST & BANKING CO.,
LTD., LOS ANGELES AGENCY
By:_________________________________________
Title:______________________________________
$7,000,000,000 TOTAL OF COMMITMENTS